r.i 

REPORTS 


PRACTICE    GASES, 


DETERMINED 


IN   THE 


COURTS  OF  THE  STATE  OF  NEW-YORK: 


WITH 


A  DIGEST  OF  ALL  POINTS  OF  PRACTICE   EMBRACED  IN  THE   STANDARD 

NEW-YORK   REPORTS    ISSUED   DURING    THE   PERIOD 

COVERED   BY    THIS    VOLUME. 


BY 

BENJAMIN  VAUGHAN  ABBOTT, 

ASD 

AUSTIN    ABBOTT, 

COUNSELORS  AT  LAW. 


NEW  SEEIES. 

YOL.  I. 


NEW-YORK: 

DIOSSY  &   COCKCROFT, 

Law  Booksellers  and  Publishers,  71  Nassau  Street, 

CORNER    OF   JOHN. 
1866. 


5994- 


v/l 


[Entered,  according  to  Act  of  Congress,  in  the  year  One  Thousand  Eight  Hundred  and 
Sixty-six,  by  DIOSST  &  COCKCROFT,  in  the  Clerk's  Office  of  the  District  Court 
for  the  Southern  District  of  New- York.] 


J.   H.   TOBITT, 

printer, 

360  Pwrlrti. 


3.  W.  AMEKMAN, 

printer, 
U  Cedar*. 


TABLE 


OF  THE 


CASES  REPORTED  IN  VOLUME  I,,  NEW  SERIES, 


Ackerman,  Beecher  v.} 141 

Arrieta  v.  Morissey, 439 

Ayrault  v.  Pacific  Bank, 381 

B. 

Bailey,  Lane  v., 407 

Baker,  De  Forest  v., 34 

Bank  of  Cooperstown  i>.  Corlies,..  412 

Baptist  Church  in  Oliver  Street, 

Madison  Ave.  Baptist  Church  v.  214 

Beecher  v.  Ackerman, 141 

Beekman's  Petition, 449 

Botsford  v.  Krake, 112 

Brennan,  People  v., 184 

Brett  v.  Brown, 155 

,  Delaney  v., , 421 

Brookman,  Taylor  v,, 169 

Brown,  Brett  v., 155 

C. 

Cannavan  v.  Conklin, 271 

Carpenter,  Hendricks  v., 213 

Charter  Oak  Fire  and  Marine 'In- 
surance Co.,  Van  Deusen  v.t. . .  349 
Chase,  Soule  v., 48 


Chrystal,  Graham  v., 121 

Coddington,  Mott  v., 290 

bmmon  Council  of  New  York, 
People  on  rel.  Market  Commis- 
sioners v., 318 

Conger  v.  Vandewater, 126 

Conklin,  Cannavan  v., 271 

Corlies,  Bank  of  Cooperstown  v.,.  412 
Corn    Exchange    Insurance  Co., 

Robinson  v., 186 

D. 

De  Forest  v.  Baker, 34 

Delaney  v.  Brett, 421 

De  Luc,  Jananique  v., 419 

Dikeman  v.  Puckhafer, 32 

Donnell,  Robert  v., 4 

P. 

Ferris,  People  v., 193 

Finney  v.  Veeder, 366 

Ford  v.  Townsend, 159 

Foster  v.  Wood, 150 

Fowler,  Hubbell  v., 1 

Frink  v.  Hampden  Insurance  Co.,.  343 


IV 


TABLE   OF  CASES. 


G. 

Gould,  Manice  v., 255 

Graham  v.  Chrystal, 121 

Granite  Bank,  Walker  v., 406 

Gray  v.  Hannah, 43 

Greer  v.  The  Mayor,  &c.,  of  New 
York, 206 

H. 

Hampden  Insurance  Co.,  Frink  v.  343 

Hannah,  Gray  v., 43 

Haskius  v.  Kelly, 63 

Hatch  v.  Wolfe, 77 

Haviland  v.  Kane, 409 

Hendricks  v.  Carpenter, 213 

Heydrick,  Mosher  v., 258 

Houghton,  Martin  v., 339 

Hubbell  v.  Fowler, 1 

Huelet  v.  Reyns, 27 

J. 


James,  Philipe  v.,. . . . 
Jananique  v.  De  Luc,.. 
Jones,  White  v., 


K. 


Kane,  Haviland  v., 

Kelly,  Haskins  v.t 

,  People  ex  rel.  Ritterman  v., 

Keane,  Tilman  v., 

Ketchum  v.  Ketchum, 

.  McVickar  v., 

Krake,  Botsford  v., 


L. 

Lane  v.^ailey, , 

Lansing  v.  Lansing, 

Lee,  Wilcox  v,, 

Lewis  v.  Randall, 

Livingston,  People  ex  rel.  v.  Tay- 
lor,   

M. 


311 
419 

328 


409 

63 

432 

23 

157 

452 

112 


407 
280 
250 
135 

200 


McVickar  v.  Ketchum, 452 

Madison  Avenue  Baptist  Church 


v.    Baptist    Church  in  Oliver 

Street, 214 

Manhattan  Gas  Light  Company, 

People  v., 404 

Manice  v.  Gould, 255 

Market  Commissioners,  People  ex 
rel.  v.  Common  Council  of  New- 
York ,.  318 

Martin  v.  Houghton, 339 

Mayor,  &c.,  of  N.  Y.,  Greer  v.,. . .  206 

Middleton,  Redfield  v., 15 

Mitchell,  Star  Steamship  Co.  v.,. .  396 

Morgan  v.  Morgan, 40 

•,  Wilson  v., 174 

Morrissey,  Arrieta  v., 439 

Mosher  v.  Heydrick, 258 

Mott  v.  Coddington, 290 

Mulock,  Smith  v., 378 

0. 

Oakley  v.  Sears, 368 

Ostrom,  Wilbur  v., 275 

P. 

Pacific  Bank,  Ayrault  v., 381 

Palmer's  Petition, 30 

Palmer,  Towle  v., 81 

Patterson  v.  Patterson, 262 

People  v.  Brennan, 184 

(ex  rel.  Market  Commission- 
ers) v.  Common  Council  of 
New-York, 318 

—  v.Ferris, 193 

—  (ex  rel.  Ritterman)  v.  Kelly, .  432 

v.  Manhattan  Gas  Light  Co.,  404 

(ex  rel.  Ryan)  v.  Russel,. . . .  230 

v.  Strong, 244 

(ex  rel.  Livingston)  v.  Tay- 
lor,    200 

Petition  of  Palmer, 30 

Philipe  v.  James, 311 

Powers  v.  Shepard, 129 

Puckhafer,  Dikeman  v.,, 32 

R. 

Randall,  Lewis  v., 135 

Redfield  v.  Middleton 15 


TABLE   OF  CASES. 


Reyns,  Huelet  v., 2 

Ritterman,  People  ex  rel.  v.  Kelly,  432 

,  Wright  t>., 428 

Robert  v.  Donnell,  

Robinson  v.  Corn  Exchange  Ins.  Co.  186 
Russel,  People  ex  rel.  v.  Ryan,  . .  230 
Ryan,  People  ex  rel.  Russel  v.,.. .  230 

S. 

Schuyler,  White  v., 300 

Sears,  Oakley  v., 368 

Shepard,  Powers  v., 129 

Smith  v.  Mulock,  378 

,  Turner  v., 304 

Soloman'a  Case, 347 

Soule  v.  Chase, 48 

Star  Steamship  Co.  v.  Mitchell, . .  396 

Storm,  Stryker  v., 424 

Strong,  People  t1., 244 

v.  Strong, 233,  358 

Stryker  v.  Storm, 424 


T. 


Taylor  v.  Brookman, 

People  ex  rel.  Livingston  v.,  200 


Tilman  v.  Keane, 23 

Towle  v.  Palmer, 81 

Townsend,  Ford  v., ...  159 

Turner  v.  Smith, 304 

V. 

Van  Deusen  v.  Charter  Oak  Fire 
and  Marine  Insurance  Com- 
pany,    349 

Vandewater,  Conger  v.t 126 

Veeder,  Finney  v., 366 

W. 


Walker  v.  Granite  Bank, 406 

White  v.  Jones, 328 

v.  Schuyler, 300 

Wilbur  v.  Ostrom, 275 

Wilcox  v.  Lee, 250 

iVilson  v.  Morgan, 174 

Wolfe,  Hatch  v., 77 

Wood,  Foster  t>., 150 

169  Wright  v.  Ritterman, 428 


INDEX 


TO  THE 


CASES  REPORTED  IN  VOLUME  I,,  NEW  SERIES, 


Account—  what  is  a  long  account  ......................................    77 

Action  must  be  brought  to  annul  grant,  for  breach  of  condition  subse- 
quent, before  such  breach  can  avail  a  third  person  in  a  collateral  action.    81 

-  what  is  proper,  to  prevent  obstruction  of  wharf.  .................  169 

-  will  lie  by  partner  to  enjoin  sale  of  assets  by  individual  creditor  of 
copartner  .........................................................  304 

Aclicns,  what  are  local  and  what  transitory  ............................  290 

Adverse  possession  of  lands  under  water  ................................    81 

Affidavit  need  not  be  subscribed  .......................................    48 

—  —  to  examine  third  person  in  supplementary  proceedings  ...........  156 

-  requisites  of,  to  procure  extradition  of  fugitive  from  another  State.  347 

-  to  obtain  discovery,  requisites  of  ...............................  233 

Agent  for  collection  of  negotiable  paper,  liability  of  .  .  ...................  381 

Allowance  of  alimony  in  divorce  cases,  on  what  proof  granted  ...........  358 

Amendment,  want  of  stamp  upon  process  not  curable  by  ................  135 

-  not  allowed  after  verdict,  to  cure  defective  allegation  of  fraud  ----  396 

-  after  amending  complaint,  new  answer  is  necessary  :  time  for  mov- 
ing to  compel  amendment  ..........................................  406 

Answer,  in  action  on  undertaking  given  in  injunction  suit  ...............    34 

-  when  struck  out  as  sham  ;  and  mode  of  entering  judgment  thereon.    34 

-  interposing  statute  of  limitations  ;  plaintiff  may  be  required  to 
reply  to  ..........................................................    11 

an  answer  by  executors  of  deceased  partner,  and  by  surviving 


partner  ...........................................................  412 

Appeal  hi  Marine  Court,  and  security  thereupon  ........................      4 

-  -  from  Surrogate's  Court,  and  costs  thereon  .......................    40 

--  from  Justice's  Court,  requisites  of  notice  ........................    43 

-  when  does  not  lie  from  order  of  reference  .......................    77 

-  not  dismissed  for  want  of  stamp  ................................  135 


Till  INDEX. 

FACtt 

Appeal — variance  may  be  objected  to,  on  appeal,  without  having  taken 

formal  exception  to  referee's  report 262 

from  order  denying  motion  for  new  trial,  lies  even  after  judgment.  407 

may  be  joint,  if  the  judgment  is  erroneous  as  to  some  of  the  appel- 
lants   412 

Arrest,  right  of,  in  action  for  specific  personal  property 419 

discharge  from  imprisonment  for  debt,  precludes  second  arrest. . . .  428 

defendant  cannot  be  twice  arrested  for  eame  cause,  though  in  dif- 
ferent forms  of  action 432 

motion  to  vacate  should  not  be  referred 27 


Assessments  for  local  improvements  in  Now- York  city,  how  made 30, 449 

in  what  cases  set  aside 449 

Attachment,  defendant  may  move  to  set  aside,  without  general  appearance.  255 

not  issuable  in  action  between  partners ;  cannot  be  set  aside  on 

motion  of  a  mere  attachment  creditor 157 

against  vessels,  validity  of  proceedings  for. 421 

B. 

BiUs,  notes  and  check* — what  is  parting  with  value  for 378 

Bond  given  as  a  condition  of  leave  in  an  action,  effect  and  force  of. 159 

Bounties  for  enlisting  soldiers . 129 

C. 

Cause  of  action — election  between  fraud  and  contract 428, 432 

for  refusal  to  fulfil  agreement  to  enter  into  partnership 15 

what  is,  for  a  tort 77 

distinction  between  local  and  transient. ....,.,.,,,..,. 290 

—  against  occupant  of  defective  building,  for  injury  to  passer-by 271 

Challenge— -what  irregularities  in  making  up  jury  are  ground  of. 192 

Chattel  mortgage— assignment  of,  when  a  pledge 63 

not  specifying  the  time  of  payment ;  and  omission  of  register  to 

index 32 

City  Judge  of -New-  York  has  power  to  allow  habeas  corpus 230 

Claim  and  delivery—  effect  of  requisition;  and  of  withdrawing  claim  for 

redelivery. 63 

Commissioner  of  Jurors  does  not  act  judicially 200 

Complaint — sufficiency  of,  in  action  for  refusal  to  fulfill  agreement  and 

enter  into  partnership 15 

for  deceit  must  allege  false  representations  explicitly 396 

for  money  lost  at  play 439 

for  relief  against  usury,  when  must  offer  to  pay  debt 141 

Comptroller— when  not  required  to  pay  salary  to  officer,  after  paying  it  to 

wrongful  claimant ,......,,,,.,,.,,.,,, 184 

Condition — what  is  subsequent  and  what  precedent 18 

Constitutional  laws — power  of  legislature..  ....*......„.,....... ...................... . .  129, 135 

stamp  act 135 

legal  tender 174 

Contract — stipulation  in,  when  merged  by  subsequent  deed 290 

how  far  subject  to  legislative  regulation 129 

to  pay  in  gold  not  specifically  enforceable 174 


INDEX.  IX 

MM 

Costs  of  unsuccessful  suit  on  bill  or  note,  when  chargeable  on  agent  for 

collection 88* 

effect  of  offer  to  allow  judgment 23 

requisites  of  notice  of  appeal  from  Justice's  Court 43 

on  appeal  from  Surrogate's  Court 40 

Counter-claim— in  demand  for  conversion  of  goods 27 

Court  of  Sessions— how  continued  beyond  third  week 192 

Criminal  complaint  must  originate  in  police  court 244 

Cumulative  evidence — what  is 368 

D. 

Debt—vrliM  is,  within  legal  tender  act 174 

DiscTiarge  in  bankruptcy,  under  foreign  law,  how  pleaded 311 

effect  of,  in  insolvency  proceedings 48 

from  imprisonment  for  debt,  precludes  second  arrest 428,  432 

Discovery  and  inspection  of  books  and  papers,  hi  what  cases  ordered 233 

Dismissal  of  complaint  in  action  for  slander  in  charging  perjury 275 

in  action  for  relief  against  usury,  should  not  be  ordered  for  omis- 
sion to  offer  payment  of  debt 141 

District  Attorneys — powers  of 244 

Divorce — wife's  expenses  may  be  allowed,  after  jury  have  disagreed,  with- 
out usual  affidavits 358 

settlement  of  issues 233 

E. 

Evidence — rules  of,  relative  to  license  to  pass  over  neighbor's  land 339 

what  is  cumulative 368 

of  loss  of  papers,  to  found  the  offer  of  secondary  evidence  of  con- 
tents, is  for  the  court  to  pass  on 121 

offer  to  allow  judgment  not  admissible  on  the  trial 366 

rules  of,  in  reference  to  connected  correspondence 233 

rules  of,  in  an  action  of  slander  for  charging  perjury 275 


Examination  of  parties  allowed  before  issue 452 

Exception  to  referee's  report,  upon  the  ground  of  variance  between  plead- 
ing and  proof,  not  always  essential 262 

to  a  finding  allowing  interest  must  be  specific  as  to  the  period 121 

Execution — when  defendant  arrested,  must  be  charged  in  execution  :  how 
long  to  be  charged  before  exoneration 409 

at  suit  of  individual  creditor  of  a  partner  may  be  enjoined  by  co- 
partner   304 

Executors  and  administrators  of  joint  debtor,  how  proceeded  against  upon 
judgment  against  the  decedent .150 

commissions  of :  when  personal  services  of  may  be  allowed  for: 

when  chargeable  with  compound  interest :  duty  of  as  to  investments. .  280 

Extradition — requisites  of  proceedings  for,  of  fugitive  from  another  State..  347 

F. 
Former  adjudication  in  premature  action,  not  a  bar 250 


X  INDEX. 

G. 

PAOB 

Good  wiH — when  infringed  by  retiring  partner  or  employee  of  late  firm. .  328 
Guaranty — how  affected  by  usury 141 


H. 

Habeas  corput  may  be  allowed  by  City  Judge 230 

in  what  cases  it  lies,  and  how  far  imprisonment  on  civil  process 

may  be  inquired  into 432 

I. 

Indictment — in  what  cases  quashed  on  motion 244 

Injunction  may  be  granted  at  suit  of  a  partner  to  enjoin  execution  sale  of 

assets  by  individual  creditor  of  co-partner 304 

when  does  not  lie  to  prevent  erection  of  wharf. 1 69 

to  forfeit  corporate  rights note,  169 

to  restrain  retiring  partner  from  using  name  and  opening  letters.  328 

Inquest  not  opened  after  lapse  of  time 213 

Insolvency — requisites  and  regularity  of  the  proceedings  to  obtain  dis- 
charge     48 

Insurance—  payee  named  in  policy  may  recover  in  his  own  name 343 

evidence  of  proofs  of  loss :  effect  of  mortgage  of  goods 349 

effect  of  payment  on  policy  issued  "  for  whom  it  may  concern". . .  186 

Interest— when  recoverable  upon  unliquidated  demands 121 

when  recoverable  upon  the  pleadings 186 

Issues — how  settled  in  divorce  cases 233 

J. 

Joint  debtors — effect  of  judgment  against 150 

Judgment— what  is  "  more  favorable"  than  offer 23 

entry  on  report  of  referee 23 

entry  after  answer  struck  out  as  sham 34 

ground  of,  presumed  from  the  evidence 250 

modification  of,  on  appeal,  does  not  necessarily  affect  bond  given 

for  payment,  &c : 159 

against  executors  or  administrators  should  be  expressed  to  be 


leviable  of  the  estate 412 

"  Judgment  debtors" — meaning  of 150 

Judgments  of  inferior  courts  barred  in  twenty  years 126 

validity,  when  not  affected  by  defect  in  summons 150 

effect  of  against  joint  debtors :  and  enforcement  against  heirs,  &c. .  150 

Judicial  ae^what  is 200,  230 

Judicial  sale  not  set  aside  even  at  the  instance  of  infants,  unless  they  will 

be  clearly  benefited  by  the  result 424 

Jurisdiction  of  appellate  court  not  affected  by  omission  of  stamp  on  pro- 
cess   135 

of  proceedings  to  discharge  insolvent 48 

Justices'  court— requisites  of  notice  of  appeal  from 43 


INDEX.  XI 

L. 

PAOl 

Laches— in  practice,  what  is,  and  when  impntable  to  officers 206 

Legacy — when  must  bear  its  own  taxes  and  commissions 280 

Legal  tender — sufficient  in  payment  of  debts  agreed  to  be  paid  in  gold 174 

Legislative  power — limits  of 129, 135 

License  to  enter  land  of  neighbor,  when  presumed 339 

Limitations  of  actions  upon  judgments  of  inferior  courts 126 


M. 

Mandamus  does  not  issue  to  compel  second  payment  of  salary 184 

to  municipal  corporation  addressed  to  common  council 318 

lies  to  commissioners  of  jurors 200 

does  not  lie  to  city  judge 230 

Marine  court — appeals  in,  and  security  thereupon 4 

judgments  of,  barred  hi  twenty  years 126 

Measure  of  damages  in  action  by  tenant  of  life  estate,  for  destruction  of 

buildings 206 

interest  recoverable  on  unliquidated  demands -. .  121 

on  contract  to  pay  in  gold 174 

on  insurance  policy 186 

Motion  to  quash  indictment,  when  may  be  made,  and  in  what  cases  granted.  244 

to  open  inquest  must  be  made  seasonably 213 

to  set  aside  attachment  may  be  made  without  general  appearance.  255 

to  require  plaintiff  to  reply 1 

to  vacate  order  of  arrest  should  not  be  referred 27 

to  vacate  assessments  in  the  city  of  New  York 30 

who  may  make,  to  set  aside  attachment 157 

When  ground  of  arrest  may  be  tried  on  affidavits 419 

Municipal  corporation  may  be  compelled  by  mandamus  to  issue  public 

stock  created  by  law 318 

N. 

New  trial  ordered  after  judgment 206,  408 

when  allowed,  if  evidence  may  have  prejudiced  jury 381 

when  granted  for  newly  discovered  evidence 368 

Notice  in  proceedings  in  insolvency 48 

of  appeal  from  justices'  court,  requisites  of 43 

Nuncupative  will — who  may  make , 112 

O. 

Offer  to  allow' judgment,  when  not  admissib  e  in  evidence  on  the  trial 

to  allow  judgment :  what  is  "  a  more  favorable  judgment" 23 

P. 

Parties.    Payee  of  insurance  policy  may  sue  in  his  own  name 343 

Partnerthiv.  Assent  to  proposal  of  dissolution  not  evidenced  by  allegation 
in  pleading .  373 


Xll  INDEX. 

PAG* 

Petition  to  vacate  assessment  in  New  York 30 

for  insolvent's  discharge 48 

Pleading  in  action  on  action  on  undertaking  given  in  injunction  suit 34 

offer  to  pay  debt  upon  prayer  to  be  relieved  from  usury 141 

issue  as  to  interest 186 

fraud  or  defeasance  as  a  ground  of  setting  aside  a  deed. 262 

foreign  discharge  in  bankruptcy,  mode  of 311 

false  representations  must  be  explicitly  averred 396 

in  an  action  against  a  pledgee,  a  denial  of  complete  payment  is 

enough,  -with  stating  how  much  is  unpaid 406 

•  joint  answer,  -which  is  good  as  to  some  defendants,  is  not  frivolous  412 


Pledge  and  mortgage  distinguished • 63 

Power  conferred  by  law  on  several  persons 449 

Pre-emption  right  to  lands  under  water  in  New  York 81 

Probate  of  nuncupative  will 112 

Proofs  of  loss— service  of,  in  insurance  cases 349 


Question  of  title — what  is 271 

Questions  of  law  and  fact 121, 186 

R. 

Reference — requisites  of  report 23 

costs,  when  not  to  be  fixed  by  referee 32 

motions  to  vacate  order  of  arrest  should  not  be  referred 27 

may  be  ordered  in  an  action  for  breach  of  covenant 77 

Register— omission  to  index  chattel  mortgage 32 

Religious  corporation — power  of  court  to  allow  sale  of  lands :  object  of 

sale  :  amalgamation  of  two  societies :  form  of  proceedings  for  sale 214 

Reply — when  plaintiff  may  be  required  to 1 

S. 

Sale — meaning  of 214 

Service — by  publication,  in  proceedings  in  insolvency 48 

Shipping — validity  of  proceedings  for  attachment  of 421 

Slander  in  charging  perjury :  rules  of  evidence  in 275 

Specific  performance — when  may  be  decreed,  respecting  stock 300 

Stamp — necessity  of,  upon  process  for  appeal  from  inferior  court 135 

Statute  as  to  drawing  jurors  is  directory 192 

Summons — defect  in  form  of,  amendable 150 

Superior  Court  of  N.  T.  may  issue  attachments  against  vessels 421 

Supplementary  proceedings — requisites  of  affidavit  to  examine  third  person.  155 

T. 

Title— what  is  question  of 271 

Trial  in  criminal  cases :  drawing  jurors :  postponing  after  arraignment 
and  plea 192 


INDEX.  3311 

U. 


Undertaking  —  given  in  injunction  suit,  when  action  lies  on  ..............    34 

Usury  —  who  may  maintain  action  for  relief  against  ....................  141 

V. 

Variance—  what  is,  in  an  action  to  set  aside  conveyance  ................  262 

Vendor  and  purchaser  —  who  liable  on  destruction  of  building  by  fire  .....  290 

Venire  unnecessary  in  criminal  cases  ..................................  192 

Verdict  set  aside  for  mistake,  after  judgment  ...........................  206 

W. 

Wharf—  liability  of  possessor  for  injuries  from  defect  in  .....  .  ..........  271 

"Witt—  validity  of  nuncupative  will,  and  who  may  make  one  .............  112 


ABBOTTS' 

PEACTICE    REPORTS. 

NEW-YORK. 


NEW     SERIES  . 


HUBBELL  against  FOWLER. 

Supreme  Court,  Fifth  District;  Special  Term,  November,  1865. 

PLEADING. — REQUIRING  REPLY. 

An  answer  interposing  the  Statute  of  Limitations,  presents  a  proper  ease  for 
the  Court  to  require,  on  defendant's  motion,  that  the  plaintiff  reply. 

It  is  not  generally  essential  that  the  defendant,  in  moving  to  compel  such 
reply,  should  state  that  he  does  not  know  the  ground  on  which  the  plain- 
tiff intends  to  rely  to  defeat  the  bar  of  the  statute. 

Motion  that  plaintiff  be  required  to  reply  to  the  first  defence 
contained  in  defendant's  answer. 

The  action  was  upon  a  promissory  note,  to  which  the  defend- 
ant pleaded,  first,  the  statute  of  limitations ;  secondly,  pay- 
ment. The  affidavit  in  support  of  the  motion  showed  that  the 
summons  was  in  fact  served  more  than  six  years  after  the  ma- 
turity of  the  note  sued  upon.,  and  that  the  defendant  was  ad- 
vised by  counsel  that  it  was  necessary  for  the  proper  defence 
of  the  suit,  that  the  defendant's  counsel  should  be  informed 
before  the  trial  in  what  way  the  plaintiff  expected  to  defeat 
the  operation  of  the  statute.  There  were  also  the  usual  affida- 
vits of  merits. 

VOL.    I.— 1 


ABBOTTS'  PRACTICE  REPORTS. 


Ilubbell  v.  Fowler. 


D.  C.  Calvin,  for  the  defendant. 
W.  Hammond,  for  the  plaintiff. 

MULLEN,  J. — In  this  case  the  defendant  has  pleaded  the 
statute  of  limitations,  and  now  asks  for  an  order  requiring  the 
plaintiff  to  reply  to  the  plea,  bj  specifying  the  grounds  which 
he  relies  upon  to  defeat  the  operation  of  the  statute. 

The  case  is  not  one  in  which,  by  the  Code  of  Procedure,  the 
plaintiff  is  bound  to  reply,  or  the  facts  stated  in  the  answer 
will  be  taken  as  admitted.  But  the  application  is  made  under 
section  153  of  the  Code,  which  provides  that  in  cases  other 
than  where  a  counter-claim  is  set  up  in  the  answer,  if  the  an- 
swer contains  new  matter  constituting  a  defence  by  way  of 
avoidance,  the  Court  may,  in  its  discretion,  on  the  defendant's 
motion,  require  a  reply  to  such  new  matter. 

The  case  before  me  is  one  in  which  the  Court  has  power  to 
require  a  reply. 

To  introduce  the  practice  of  requiring  a  reply  in  all  cases 
which  may  come  within  the  terms  of  the  clause  of  the  section 
cited,  is  to  multiply  motions  not  only  unnecessarily  but  unrea- 
sonably. In  many,  if  not  in  most,  cases,  the  defendant  knows 
with  reasonable  certainty  the  answer  which  will  be  given  to 
his  defence  ;  and  there  can  be  no  reason  for  a  motion  to  enable 
him  to  ascertain  a  fact  of  which  he  is  already  cognizant. 

There  are,  however,  very  many  cases  in  which  the  defend- 
ant may  not  know  the  answer  which  the  plaintiff  in  ay.  make  to 
the  new  matter  in  his  defence  because  it  may  be  matter  affect- 
ing the  plaintiff  personally,  or  the  business  may  have  been 
transacted  on  the  part  of  the  defendant  by  an  agent,  or  there 
may  be,  as  in  the  case  before  me,  a  large  number  of  answers 
which  may  be  insisted  on  by  way  of  reply  to  the  new  matter 
of  the  answer,  all  of  which  it  would  be  unreasonable  to  require 
the  defendant  to  prepare  to  meet  on  the  trial,  although  the 
matter  to  be  replied  to  may  be  presumed  to  be  known  to  him 
personally. 

The  bar  by  reason  of  the  running  of  the  statute  of  limita- 
tions may  be  defeated  in  several  different  ways. 

1.  By  the   commencement   of  an   action  within  the  time 
limited. 

2.  By  an  attempt  to  commence  such  action  as  prescribed  in 
§99  of  the  Code. 


NEW  SERIES  ;  VOL.  1. 


Hubbell  v.  Fowler. 


3.  By  absence  of  defendant  from  the  State  when  the  right 
of  action  accrued. 

4.  If  the  plaintiff  was  under  twenty-one  years,  or 

5.  Insane,  or 

6.  Imprisoned  on  a  criminal  charge,  or 

7.  A  married  woman. 

8.  Death  of  the  person  having  the  right  of  action  before  the 
time  limited  expired. 

9.  That  the  plaintiff  was  an  alien,  subject  or  citizen   of  a 
country  at  war  with  the  United  States. 

10.  Actions  brought  to  judgment  recovered,  and  reversed  on 
appeal. 

11.  Stay  by  injunction. 

12.  A  new  promise. 

To  this  last  may  be  added  others,  unnecessary  to  enumerate; 
but  the  list  is  sufficiently  formidable  to  show  how  difficult  it  may 
be  in  many  cases  to  know  on  what  ground  the  plaintiff  intends 
to  defeat  the  bar  of  the  statute. 

If  there  is  any  case  in  which  it  is  proper  to  require  a  reply, 
it  seems  to  me  this  is  the  one. 

It  was  suggested  by  counsel  that  the  defendant  should  be 
required  to  aver  that  he  does  not  know  the  ground  on  which 
the  plaintiff  intends  to  rely  to  defeat  the  bar.  While  this  may 
in  some  cases  be  very  proper,  yet  in  most  instances  the  nature 
of  the  defence,  and  the  manner  in  which  the  business  was  con- 
ducted out  of  which  the  action  or  defence  accrued,  will  afford 
a  much  better  guide  in  determining  the  propriety  of  requiring 
a  reply.  In  this  case  I  do  not  deem  it  essential. 

Let  a-n  order  be  entered  requiring  the  plaintiff  to  serve  a  re- 
ply to  the  answer  setting  up  the  statute  of  limitations  within 
twenty  days  from  service  of  copy  order  ;  the  costs  of  the  order, 
$10,  to  abide  event  of  the  suit. 


ABBOTTS'  PRACTICE  REPORTS. 


Robert  v.  Donnell. 


ROBERT  against  DONNELL. 
Court  of  Appeals  ;  March  Term,  1865. 

MAEINE  COURT  or  NEW  YORK. — UNDERTAKING  ON  APPEAL. — 

CON&TKUCTION  OF  STATUTE. 


The  Act  of  1853,  (Chap.  617,  §  5) — directing  the  mode  of  appeal  to  the  gene- 
ral term  of  the  Marine  Court, — makes  sections  348  and  335  of  the  Code 
of  Procedure  applicable  to  appeals  in  that  Court. 

On  an  appeal  from  a  single  Judge  of  the  Marine  Court  to  the  general  term 
of  that  Court,  if  a  stay  of  proceedings  is  wanted,  security  must  be  given 
as  on  a  similar  appeal  in  one  of  the  Superior  Courts,  and  an  undertaking 
given  for  that  purpose  is  valid. 

"Where  an  appeal  has  been  properly  taken,  in  the  Marine  Court,  from  the 
decision  of  a  single  Judge  to  the  general  term,  no  single  Judge  of  the 
Court  has  the  power  to  dismiss  the  appeal. 

Appeal  from  the  General  Term  of  the  New  York  Common 
Pleas  affirming  an  order  dismissing  the  plaintiff's  complaint. 

The  action  was  brought  by  Thomas  Robert  against  James 
Donnell  and  "William  Good.  The  plaintiff  had  previously  re- 
covered a  judgment  in  the  Marine  Court  of  the  City  of  New 
York  for  $489  70,  against  one  Ezekiel  Donnell,  who  appealed 
to  the  General  Term  of  the  Marine  Court,  where  the  judgment 
was  affirmed.  The  notice  of  appeal  in  that  former  suit  was 
served  on,  the  81st  of  December,  1855,  and  on  the  same  day  an 
undertaking  was  executed  by  the  defendants  in  the  present 
action  for  the  amount  of  the  judgment,  &c.,  on  which  under- 
taking this  action  was  brought  in  the  Court  of  Common  Pleas. 
Subsequently,  on  motion  of  the  plaintiffs  in  the  suit  in  the  Ma- 
rine Court,  the  appeal  was  dismissed  by  a  single  Judge.  This 
latter  order  was  afterwards  vacated  by  the  same  Judge. 

On  the  trial  of  the  present  action,  the  plaintiff's  counsel 
offered  in  evidence  an  order  made  by  the  Justice  who  tried 
the  cause  in  the  Marine  Court  requiring  the  defendant  to  give 
security,  or  in  default  thereof  that  the  stay  of  proceedings  be 


NEW  SERIES  ;   Vo;,.  I. 


Robert  v.  Donnell. 


vacated.  This  was  objected  to  and  ruled  out  by  the  Court, 
which  ruling  was  excepted  to  by  the  plaintiff. 

The  plaintiff  having  rested,  the  defendants  moved  for  a  dis- 
missal of  the  complaint  on  the  grounds — 1.  That  the  undertak- 
ing was  void  as  being  without  consideration,  and  as  not  au- 
thorized by  any  statute ;  2.  That  the  appeal  had  been  dis- 
missed by  one  of  the  Judges,  and  that,  therefore,  no  cause  of 
action  was  proved. 

The  Court  then  ordered  that  the  complaint  be  dismissed,  to 
which  the  plaintiff  excepted,  and  appealed  from  the  decision  to 
the  General  Term  ;  the  decision  of  that  Court  is  reported  in  10 
Abbotts' Practice  Reports,  454.  The  General  Term  affirmed  the 
order,  and  the  plaintiff  appealed  to  the  Court  of  Appeals. 

Henry  Brewster,  for  the  appellant. 

I.  This  undertaking  is  authorized  by  the  Statute,  and  bind- 
ing within  all  the  cases. 

By  the  act  of  1853,  §  5,  of  chap.  617,  p.  1166,  it  is,  among 
other  things,  enacted  in  relation  to  the  Marine  Court,  as 
follows : 

"  An  appeal  may  be  taken  upon  the  same  from  a  judgment 
entered  by  the  direction  of  a  single  Justice  of  the  said  Court 
to  the  Justices  thereof,  at  a  General  Term,  in  the  same  manner 
and  with  the  like  effect,  as  appeals  in  the  Supreme  Court,  from 
the  decision  of  a  single  Judge  to  the  General  Term." 

Thus  both  as  to  the  manner  and  effect,  the  appeals  resemble 
appeals  in  the  Supreme  Court.  The  statute  is  very  concise. 

It  neither  fixes  the  time  for  appeal,  notice,  manner  of  ser- 
vice, or  the  proceedings  of  the  Appellate  Court,  the  right  to  a 
stay,  or  the  terms  of  staying  proceedings,  or  the  matter  of 
security  ;  save  by  a  reference  to  appeals  in  the  Supreme  Court. 
For  these  we  must  look  first  to  the  Code,  §348.  That  section  re- 
fers, as  to  security,  to  the  provisions  in  relation  to  the  appeals  to 
the  Court  of  Appeals ;  for  that  we  refer  to  §  355.  That  is  as  to 
the  effect.  But  the  hearing  must  be  in  the  manner  mentioned 
in  chap.  III.,  §§  344  to  347.  Then  §§  327,  330,  332  of  the  Code 
apply  to  the  appeals  mentioned  in  §  348 ;  and,  therefore,  to 
appeals  in  the  Marine  Court.  Nor  are  we  entirely  without 


\ 

6  ABBOTTS'  PRACTICE  EEPOETS. 

Robert «.  Dennell. 

authority  on  this  point.    The  People  v.  Clerk  of  the  Marine 
Court,  3  Abbotts'  Pr.  T^.,309. 

Judge  Mitchell,  giving  the  opinion  of  the  Court,  says  of  this 
statute  :  "  The  manner  relates  to  the  mode  of  effecting  an  ap- 
peal, the  notice  and  security  to  be  given  ;  the  effect  relates  to 
the  consequences  produced  by  the  appeal,  as  under  what  cir- 
cumstances it  shall  operate  to  stay  proceedings." 

II.  If  this  intention  is  not  plain  on  the  face  of  the  statute,  it 
is  there  by  a  fair  construction. 

Analogous  statutes  aid  in  arriving  at  the  intention.  (Dwar- 
ris  on  Stat.,  690.)  The  meaning  is  to  be  gathered  from  the 
occasion  of  the  law.  (Id.  693-4.)  The  mischief  here  to  be  rem- 
edied is  with  the  enlarged  jurisdiction,  the  greater  injury 
from  erroneous  judgments.  The  object  is  to  give  facility  for  a 
review  before  three  Judges  as  a  remedy  for  any  haste,  preju- 
dice, or  mistake  of  one  Justice,  and  to  furnish  two  appeals,  as 
giving  a  reasonable  assurance  against  unjust  judgments.  (See 
Report  of  Commissioners  of  Code,  pp.  22,  23.)  Intent  may  be 
ascertained  by  comparison  of  one  law  with  other  laws  on  the 
same  subject.  They  are  compared  because  framed  on  one  sys- 
tem. (Id.  699.) 

III.  When  a  new  statute  gives  an  action  in  a  new  case  upon 
a  former  statute,  everything  annexed  by  the  first  is  given.  (Id. 
700.)    This  statute  refers  to  appeals  in  Supreme  Court,  and  in 
giving  a  new  appeal  to  be  taken  in  the  same  manner  and  with 
like  effect,   it  carries  all  tilings  annexed  to  such  previous  ap- 
peal.    The  object  of  law  is  the  attainment  of  justice.    (Id.  727. 
755.)     Statutes  in  pari  materia  are    construed   together.      (9 
Cowen,  437 ;  5  Hill.,  221.)     Likewise,  and  in  like  manner,  are 
held  to  couple  the  previous  branch  of  the  statute  by  reference. 
=,    The  question  of  a  stay  of  proceedings  pending  the  appeal  is 
very  important.     Appeals  by  all  laws  in  all  countries,  with  few 
exceptions,  stay  proceedings. 

But  to  prevent  collecting  money  security  has  usually  been 
required. 

IY.  The  appeal  was  pending,  and  the  affirmance  good  and 
binding. 

The  order  of  Justice  McCarthy,  so  far  as  it  purported  to  dis- 
miss the  appeal,  was  a  nullity. 


NEW  SERIES;    VOL.  I. 


Robert  v.  Donnell. 


The  appellate  Court  only,  can  dismiss  an  appeal.  (I  Whit- 
taker  Pr.,  189 ;  Fort  v.  Bard,  1  Comst.,  43  ;  Id.,  126,  228, 
429,  429,  430,  606 ;  Barnum  v.  Seneca  Co.  Bank,  6  How.  Pr., 
82  ;  Harris  v.  Clark,  10  How.  Pr.,  419-20.)  The  Judge  had 
power  to  revoke  the  order — at  all  events  the  Marine  Court 
were  proper  judges  of  the  regularity  of  the  proceedings  in  that 
Court,  and  they  held  the  appeal  pending  and  affirmed  the  judg- 
ment. (Barker  v.  Binniiiger,  4  Kern.,  270 ;  The  People  v. 
Gale,  16  How.  Pr.,  199 ;  Griswold  v.  Sedgwick,  1  Wend., 
126  ;  Beynolds  v.  Corp,  3  Caines,  267.)  There  is  no  time  with- 
in which  an  appeal  must  be  brought  on.  Either  party  may 
notice  it  and  get  it  disposed  of;  but  until  that  is  done  it  is 
pending.  The  liability  of  the  sureties  continues  through  all  the 
proceedings.  Suppose  a  judgment  reversed  by  default.  The 
reversal  discharges  the  sureties  ;  but  if  the  reversal  is  set  aside 
and  default  opened,  surely  the  undertaking  remains  good. 
Delay  does  not  affect  the  surety,  where  the  default  is  non-pay- 
ment of  money.  (Daniels  v.  Patterson,  3  Comst.,  47  ;  Robin- 
son v.  Plimpton,  25  N~.  Y.  Rep.,  484 ;  and  cases  there  cited. 
That  the  sureties  were  not  entitled  to  notice,  see  Blue  v. 
Stout,  3  Cowen,  354  ;  Burrall  v.  Yanderbilt,  6  Abbotts'  Pr.y 
70  ;  1  BOWJ.,  637.) 

Moses  Ely,  for  respondents. 

I.  The  instrument  in  suit  expressed  no  consideration  on  its 
face,  and  it  was  not  pretended  at  the  trial  that  any  considera- 
tion was  ever  given  or  received  therefor,  or  even  that  it   was 
ever  delivered,  except  as  an  undertaking  to  stay  proceedings 
on  a  judgment,  pending  an  appeal  therefrom.      Unless,  there- 
fore, it  operated  to  stay  proceedings  on  a  judgment  described 
in  it,  it  was  nudum,  pactum. 

II.  The  instrument,  treated  as  intended  to  be  an  undertak 
ing  under  the  Code,  to  stay  proceedings  on  a  judgment,  pend- 
ing an  appeal  therefrom,  did  not  operate  to   stay  proceedings 
on  that  judgment. 

1st.  Because  it  was  not  accompanied  by  the  affidavit  re- 
quired by  Sec.  341  of  the  Code.  2d.  Because  its  delivery,  as 
such  an  undertaking,  was  not  complete.  Service  of  a  copy  on 
the  adverse  party,  with  notice  of  appeal,  was  essential  to  such 


ABBOTTS'  PRACTICE  REPORTS. 


Robert  v.  Donnell. 


delivery.  (Code,  Sec.  340.)  Up  to  the  time  of  making  such 
service,  the  appellant,  (notwithstanding  the  filing  of  the  origi- 
nal- undertaking,)  gives  no  perfect  expression  of  his  choice  of  a 
stay,  and  is  not  entitled  to  it.  In  this  case  there  is  no  evidence 
that  he  ever  served  a  copy  of  this  paper.  3.  The  evidence  fails 
to  disclose  when  the  original  was  filed.  To  show  a  considera- 
tion, by  reason  of  its  having  operated  as  a  stay  of  proceedings, 
it  should  have  been  proved  affirmatively  that  it  was  filed,  at 
least  some  time,  before  the  appeal  was  terminated. 

III.  The  statutes  providing  for  stays  of  proceedings,  by  un- 
dertaking, do  not  relate  to  appeals  of  the  General  Term  of  the 
Marine  Court.     Such  appeals  are  only  authorized  to  be  taken 
"  in  the  same  manner,  and  with  the  like  eifect  as  appeals  to 
the  Supreme  Court  from  the  decision  of  a  single  Judge  to  the 
General  Term,"  (Laws  of  1853,  Gh.  617,  §  5,)  in  which  the  un- 
dertaking   to    stay  proceedings    is   merely  collateral   to    the 
appeal,  and  in  no  sense  essential  to  its  validity,  or  as  part  of 
its  machinery.     (Kitching  v.  Diehl,  40  Barb.,  433.)     When 
the  instrument    involved   in   this  case  was  given,  the   only 
appeals  to  which  an  undertaking  was  essential  were  those  to 
the  Court  of  Appeals.     (Code,  Sec.  334.) 

IV.  The  appeal  in  this  case  having    been  dismissed,  the 
sureties  were,  at  the  moment  of  dismissal,  released  ;    (Drum- 
mond  v.  Husson,  ^Kernan,  60,)  and  it  is  absurd  to  claim   that 
the  vacation  of  the  order  effecting  the  release,  on  motion  of  the 
party  secured,  revived  the  liabilities  of  the  sureties. 

V.  Though   the   order   of  dismissal   might  not  have   been 
fuily  effectual,  as  between  the  actual  parties,  to  the  appeal, 
because  of  having  been  made  at  Special  instead  of  at  General 
Term  of  the  Court,  it  discharged  the  sureties.     1st.  It   was 
made  on  application  of  the  party  secured.     2nd.  It  betrayed 
nothing  on  its  face  to  show  irregularity,  and  was  filed  and 
made  part  of  the  records  in  the  suit  by  the  party  who  procured 
it,  and  so  remained  for  the  space  of  more  than  eight  months, 
during  which,  execution  was  probably  issued,  and  the  remedy 
under  the   judgment    exhausted  against  the  principal.     3rd. 
Thus  making  it  a  part  of  such  record  was  notice  to  all  (includ- 
ing these  sureties,)  that   the    appeal  was  actually  dismissed, 
and  the  sureties  discharged  ;  and  (as  against  the  sureties,  who 
were  strangers  to  the  suit,  and  between  whom  and  their  priii- 


NEW"  SERIES  ;   VOL.  I. 


Robert  v .  Dohnell. 


cipal  the  law  presumed  equities,)  estopped  the  party  who  got 
the  order,  and  gave  the  notice,  from  ever  after  denying  the 
validity  of  the  discharge.  4th.  To  this  day,  as  against  these 
sureties,  the  record  of  the  Marine  Court  is  "  appeal  dismissed," 
and  not  "judgment  affirmed,"  for  no  notice  of  the  application 
to  set  aside  the  order  of  dismissal  was  ever  served  on  the  sure- 
ties, nor  were  they  in  any  way  parties  to  the  proceedings  to  set 
aside  such  order.  5th.  The  proceedings  to  set  aside  the  order 
of  dismissal  were  a  recognition  of  the  fact  of  actual  dismissal ; 
and  having  been  made  part  of  the  records  of  the  Court  effected 
new  notice  and  additional  estoppel. 

YI.  So  long  as  the  record  of  the  Court  stood  "  appeal  dis- 
missed," with  nothing  on  the  face  of  the  record  to  impeach  it, 
the  plaintiff  was  in  a  position,  by  his  own  volition,  in  which  he 
could  not  proceed  against  the  principal ;  and  was  necessarily 
giving  him  time  without  consent  of  the  sureties. 

DAVIES,  J. — This  was  an  action  upon  an  undertaking  made 
and  executed  by  the  defendants  to  the  plaintiff,  bearing  date 
December  31,  1S55. 

It  recites  that,  on  the  14th  day  of  December  of  that  year,  in 
the  Marine  Court  of  the  City  of  New  York,  the  above-named 
plaintiff  had  recovered  a  judgment  in  that  Court  against  the 
appellant  therein  named,  for  four  hundred  and  eighty-nine 
dollars,  and  seventy  cents,  damages  and  costs ;  and  that 
the  said  appellant,  feeling  aggrieved  thereby,  intends  to 
appeal  therefrom  to  the  General  Term  of  said  Court.  There- 
upon the  said  defendants,  pursuant  to  the  statute  in  such  case 
made  and  provided,  undertook  that  the  appellant  would  pay  all 
costs  and  damages  which  might  be  awarded  againsfc  him  on 
said  appeal,  not  exceeding  the  sum  of  two  hundred  and  fifty 
dollars,  and  did  also  undertake  that,  if  such  judgment  appealed 
from  or  any  part  thereof  be  affirmed,  the  said  appellant  would 
pay  the  amount  directed  to  be  paid  by  the  said  judgment,  or 
the  part  of  the  amount  as  to  which  said  judgment  should  be 
affirmed,  if  it  should  be  affirmed  only  in  part,  and  all  damages 
which  should  be  awarded  against  said  appellant.  The  notice 
of  appeal  and  undertaking  were  filed  with  the  Clerk  of  the 
Marine  Court,  and  a  copy  of  both  served  on  the  plaintiff's  attor- 
ney on  the  31st  day  of  December,  1.855. 


10  ABBOTTS'  PRACTICE  REPORTS. 

Robert  r.  Donnell. 

The  plaintiff's  counsel  offered  in  evidence  an  order  made  by 
the  Justice  of  that  Court  who  tried  the  action,  dated  December 
28,  1855,  in  these  words:  "Thomas  Robert  v.  Ezekiel  Donnell. 
On  affidavit  of  the  plaintiff,  and  on  order  to  show  cause,  after 
hearing  the  respective  parties,  ordered  that  the  defendant  give 
security  to  pay  the  judgment  in  this  action  by  or  before  twelve 
o'clock  on  the  31st  instant,  and  serve  notice  that  the  security 
is  given,  with  copy  of  the  undertaking;  the  sufficiency  of  the 
sureties  to  be  proved  to  the  satisfaction  of  one  of  the  Justices 
of  this  Court ;  and  in  default  of  the  giving  of  such  security,  the 
stay  of  proceedings  in  this  action,  made  in  order  of  December 
24,  1855,  is  from  the  time  above  stated  vacated."  The  intro- 
duction of  this  order  was  objected  to  by  the  defendant's  coun- 
sel, and  the  same  was  excluded,  and  the  plaintiff  excepted. 
On  the  26th  day  of  February,  185T,  at  a  General  Term  of  the 
Marine  Court,  the  judgment  appealed  from  was  in  all  things 
affirmed.  On  the  10th  of  May,  1856,  one  of  the  Justices  of  said 
Marine  Court,  sitting  alone,  made  an  order  that  said  appeal  be 
dismissed,  with  costs,  and  that  the  stay  of  proceedings  be 
vacated,  which  order  he  subsequently  vacated  on  the  21st  of 
February,  1857,  and  directed  that  the  appeal  be  restored,  the 
same  as  if  the  said  order  had  not  been  made.  The  action  was 
tried  in  the  New  York  Common  Pleas,  and  a  motion  was  made 
by  the  defendant's  counsel  to  nonsuit  the  plaintiff  or  dismiss 
his  complaint,  on  the  following  grounds  : 

First.  That  the  undertaking  was  void,  it  being  without  con- 
sideration, and  as  not  authorized  by  any  statute. 

Second.  On  the  ground  that  the  appeal  had  been  dismissed 
by  Justice  McCarthy,  and  that,  therefore,  no  cause  of  action 
•was  proved. 

The  Court  sustained  the  motion,  and  ordered  the  complaint 
to  be  dismissed,  to  which  decision  and  ruling  the  plaintiff's 
counsel  excepted.  Judgment  was  affirmed  at  General  Term. 

The  undertaking  in  this  action  was  given  upon  an 
appeal  taken  from  a  judgment  rendered  by  a  single 
Justice  of  the  Marine  Court  to  the  General  Term  of  such  Court, 
and  such  an  appeal  was  distinctly  authorized  by  the  provisions 
of  section  5  of  an  Act  in  relation  to  the  Marine  Court,  passed 
July  1, 1853  (Laws  of  1853,  chapter  617,)  which  section  declares 
that  "  an  appeal  may  be  taken  from  a  judgment  entered  by  a 


NEW  SEKIES;  YOL.  I.  11 

Robert  v.  Donnell. 

single  Justice  of  the  said  Court  to  the  Justices  thereof  at  a 
General  Term,  in  the  same  manner  and  with  the  like  effect  as 
appeals  in  the  Supreme  Court  from  the  decision  of  a  single 
Judge  to  the  General  Term."  Upon  the  proper  construction 
of  this  provision,  the  validity  of  the  undertaking  and  the 
plaintiff's  right  of  recovery  depend.  The  Code  indicates  and/' 
prescribes  the  manner  of  appeal  from  the  Special  to  the  General 
Term  of  the  Supreme  Court  and  the  effect  of  such  appeals,  and 
we  must  look  at  these  provisions  to  ascertain  the  meaning  and 
intent  of  the  Legislature  in  making  them  applicable  to  appeals 
in  the  Marine  Court.  Section  327  of  the  Code  declares  that  an 
appeal  must  be  made  by  the  service  of  a  notice  in  writing  on 
the  adverse  party  and  on  the  clerk  with  whom  the  judgment  or 
order  appealed  from  is  entered,  stating  the  appeal  to  be  from 
the  same,  or  to  some  specified  part  thereof.  Section  332 
requires  the  appeal  to  be  taken  within  thirty  days  after  written 
notice  of  the  judgment  or  order  shall  have  been  given  to  the 
party  appealing.  Sections  329  and  330  declare  the  effects  of 
the  appeal  as  to  what  the  appellant  may  do  upon  such  appeal. 
Nothing  has  been  said  thus  as  to  any  security  or  stay  of  pro- 
ceedings upon  any  appeal,  and  if  nothing  more  had  been 
provided  for,  the  party  appealing  would  in  most  cases  have 
derived  little  if  any  benefit  from  his  appeal.  The  opposite  party 
would  have  been  at  liberty  to  enforce  his  judgment,  and  the 
principal  benefits  anticipated  from  appeals,  according  to 
judicial  observation,  that  of  delay,  would  have  been  entirely 
frustrated.  The  348th  section  of  the  Code  enacts  that  no 
appeal  from  the  judgment  of  a  single  Judge  in  the  Supreme, 
Superior  Court  of  New  York,  or  Court  of  Common  Pleas  of 
said  city,  shall  operate  as  a  stay  of  proceedings,  unless  security 
be  given  as  upon  an  .  appeal  to  the  Court  of  Appeals,  as 
required  by  section  335  of  the  Code.  A  reference  to  that  sec- 
tion shows  that  if  the  appeal  be  from  a  judgment  directing 
the  payment  of  money,  it  shall  not  stay  the  execution  of  the 
judgment  unless  a  written  undertaking  be  executed  on  the 
part  of  the  appellant  by  at  least  two  sureties,  to  the  effect  that 
if  the  judgment  appealed  from,  or  any  part  thereof,  be  affirmed, 
the  appellant,  will  pay  the  amount  directed  to  be  paid  by  the 
judgment,  or  the  part  of  such  amount  as  to  which  the  judgment 
shall  be  affirmed,  if  it  be  affirmed  only  in  part,  and  all  dama- 


12  ABBOTTS'  PRACTICE  REPORTS. 

Robert  v.  Donnell. 

ges  which  shall  be  awarded  against  the  appellant  upon  the 
appeal.  It  will  be  seen  upon  the  comparison  of  the  provisions 
of  this  section,  with  the  undertaking  upon  which  this  action  is 
brought,  that  it  conforms  in  all  respects  with  the  directions  of 
this  section. 

The  only  question  remaining  is,  whether  these  sections  of  the 
Code,  in  reference  to  appeals  in  the  Supreme  Court  have  been 
made  applicable  to  the  appeals  authorized  to  the  Marine  Court. 
The  broad  language  of  the  Act  of  1853  would  seem  to  have 
been  adequate  to  remove  all  doubt  or  questions  upon  this  sub- 
ject. The  appeals  authorized  were  to  be  taken  in  the  same 
manner  and  with  the  like  effect  as  appeals  in  the  Supreme 
Court.  It  is  manifest,  the  Legislature  intended  to  confer  upon 
the  party  appealing  all  the  benefits  and  advantages  which  were 
given  to  the  party  appealing  in  the  Supreme  Court.  His 
appeal  was  to  be  taken  in  the  same  manner.  That  is,  when  it 
was  simply  an  appeal,  and  no  stay  desired  by  the  service  of 
the  notices  required,  and  when  a  stay  was  wished  for,  then,  in 
addition,  the  execution  and  filing  and  service  of  a  copy  of  the 
required  undertaking.  When  these  things  be  done,  or  either 
of  them,  then  the  appeal  was  to  have  the  like  effect  as  if  the 
same  had  been  taken  in  the  Supreme  Court.  But  we  are  not 
without  authority  on  this  point,  this  Court  having  passed  upon 
this  question,  in  the  case  of  the  People  v.  Clerk  of  Marine 
Court,  reported  in  3  Abbotts*  Pr.,  309.  Judge  Mitchell,  in  the 
opinion  of  the  Court  delivered  in  this  case,  says  :  "  The  manner 
relates  to  the  mode  of  proceeding  in  effecting  an  appeal,  the 
notice  and  security  to  be  given  ;  the  effect  relates  to  the  conse- 
quences produced  by  the  appeal,  as  under  what  circumstances 
it  shall  operate  to  stay  proceedings.  '  Effect '  is  an  appro- 
priate word  to  describe  a  result  that  follows  after  the  thing 
previously  spoken  of  (the  appeal)  is  completed,  and  would  be 
quite  inappropriate  if  used  to  define  the  cases  in  which  such 
tiling  might  be  done." 

The  undertaking  in  suit  was  fully  authorized  by  law,  and  is 
in  due  form,  and  the  defendants'  liability  upon  it  cannot  be 
questioned.  That  liability  was  not  discharged  by  the  order 
made  by  a  single  Justice  of  the  Marine  Court,  dismissing  the 
appeal.  After  the  appeal  was  perfected,  the  cause  was  pend- 


NEW  SEEIES  ;  YOL.  I.  13 

Robert  i>.  Donncll. 

ing  before  the  appellate  tribunal,  and  it,  only,  was  authorized 
to  entertain  a  motion  for  a  dismissal. 

The  Justice  properly  vacated  his  own  order,  dismissing  the 
appeal  as  unauthorized  and  of  no  eifect. 

The  order  made,  requiring  the  security  to  be  given,  should 
have  been  admitted  in  evidence  as  part  of  the  records  of  the 
Marine  Court,  and  as  a  proceeding  in  the  action.  It  was  not, 
however,  material,  and  would  not  of  itself  afford  sufficient 
ground  for  a  reversal. 

But  for  the  reasons  stated,  the  judgment  should  be  reversed, 
and  a  new  trial  ordered,  costs  to  abide  the  event. 

DATIES,  J. — At  the  close  of  plaintiff's  case  the  defendants' 
counsel  moved  for  a  nonsuit,  on  the  following  grounds : 

First.  That  the  undertaking  was  void  as  being  without  con- 
sideration, and  as  not  authorized  by  any  statute. 

Second.  That  the  appeal  had  been  dismissed  by  Justice 
McCarthy,  and  that,  therefore,  no  cause  of  action  was  proved. 

The  Court  granted  the  motion,  and  dismissed  the  complaint, 
and  plaintiff's  counsel  duly  excepted.  Several  technical  ques- 
tions were  raised  by  the  respondents'  points,  not  suggested  at 
the  trial,  and  they  are  not  to  be  considered  here. 

Justice  McCarthy  had  no  power,  sitting  alone  as  Judge,  to 
dismiss  the  appeal.  His  order  to  that  effect  was  inoperative, 
and  might  have  been  disregarded. 

It  was  properly  vacated  by  himself  at  a  subsequent  period. 
The  important  question  of  the  case  is,  whether,  upon  an  appeal 
from  a  judgment  entered  by  the  direction  of  a  single  Justice 
of  the  Marine  Court  to  the  Justices  thereof  at  a  General  Term, 
security  may  be  given  by  the  appellant,  which  will  operate  as  a 
stay  of  proceedings,  according  to  the  provisions  of  the  Code, 

This  question  depends  upon  the  construction  to  be  given  to 
the  fifth  section,  chapter  617  of  the  Act  of  1853  (Sess.  Laws, 
1853,  page  1166,)  which  is  in  these  words  : 

"  An  appeal  may  be  taken  upon  the  same  from  a  judgment 
entered  by  a  single  Justice  of  said  Court  to  the  Justices  thereof 
at  General  Term,  in  the  same  manner  and  with  the  like  effect 
as  appeals  in  the  Supreme  Court  from  the  decision  of  a  single 
Judge  to  the  General  Term." 

Section  348  of  the  Code  of  Procedure  authorizes  the  appeal 


14  ABBOTTS'  PRACTICE  REPORTS. 

Robert  v.  Donnell. 

to  the  Supreme  Court,  referred  to  in  the  foregoing  provisions, 
and  declares  that  such  an  appeal  does  not  stay  the  proceedings 
unless  security  be  given  as  upon  an  appeal  to  the  Court  of 
Appeals,  and  such  security  be  renewed  as  in  cases  required  by 
section  335  on  motion  to  the  Court  at  Special  Term,  or,  unless 
the  Court  or  Judge  thereof  so  order,  which  order  may  be  made 
upon  such  security  or  otherwise,  as  may  be  just,  such  security 
not  to  exceed  the  amount  required  on  an  appeal  to  the  Court 
of  Appeals. 

The  manner  of  making  the  appeal  is  prescribed  by  section 
327.  The  time  within  which  it  is  to  be  done  by  section  332, 
and  sections  329  and  330,  declare  the  power  of  the  appellate 
Court,  in  reviewing  the  judgment,  and  any  intermediate  order 
involving  the  merits  and  affecting  the  judgment. 

The  principal  effect  of  the  appeal  taken  in  the  manner  indi- 
cated, ip  undoubtedly  to  bring  the  judgment  for  review  before 
the  appellate  tribunal,  where  it  may  be  reversed,  affirmed 
or  modified  ;  but  there  is  another  effect  which  flows  from  the 
appeal,  to  wit :  a  stay  of  all  proceedings  on  the  judgment 
appealed  from,  provided  the  appellant  complies  with  the 
requirements  by  giving  the  security  or  obtaining  the  special 
order  which  makes  that  effect  operative. 

This  latter  effect  of  an  appeal  is  optional  with  the  appellant, 
but  when  he  chooses  to  comply  with  the  requirements  that 
produce  it,  the  stay  of  proceedings  in  the  Court  below  is 
as  much  an  effect  of  the  appeal  as  is  the  bringing  up  of  the 
judgment  for  review. 

In  using  the  general  language  of  the  section  relating  to 
appeals  in  the  Marine  Court,  above  quoted,  the  Legislature 
intended  to  adopt  the  practice,  on  the  subject  of  such  appeals 
in  the  Supreme  Court,  as  laid  down  in  the  Code  with  all 
its  concomitants  and  incidents.  It  was  not  thought  necessary 
to  repeat  the  provisions  of  the  Code,  but  the  declaration,  that 
the  appeal  should  be  taken  in  the  same  manner  and  with  the 
like  effect  as  appeals  in  the  Supreme* Court  from  the  decisions 
of  a  single  Judge  to  the  General  Term,  was  designed  to  be 
equivalent  to  such  a  repetition.  Hence,  I  think  quite  clear 
that  on  an  appeal,  in  the  Marine  Court,  the  appellant  is  at  lib- 
erty to  stay  all  proceedings  on  the  judgment  appealed  from  by 
giving  security  upon  an  appeal  to  the  Court  of  Appeals. 


NEW  SERIES;  VOL.  I.  15 

Redfield  r.  Middleton. 

In  The  People  v.  Clerk  of  the  Marine  Court,  (5  Abb.  Pr., 
320,)  this  Court  incidentally  considered  this  question,  though  it 
was  not  directly  involved.  Mitchell,  J.,  said  :  "  The  manner 
relates  to  the  mode  of  proceeding  in  effecting  an  appeal, 
the  notice  and  security  to  be  given ;  the  effect  relates  to 
the  consequences  produced  by  the  appeal,  as  under  what 
circumstances  it  shall  operate  as  a  stay  of  proceedings." 

But,  without  considering  the  subject  further,  I  think  the 
Court  below  erred  in  not  adopting  the  dissenting  opinion 
of  Brady,  J.,  as  a  correct  exposition  of  the  law  on  this  point. 
It  follows  that  the  undertaking,  on  which  this  action  is  brought, 
was  authorized  by  the  statute,  and,  if  properly  executed, 
operated  as  a  stay,  and,  therefore,  was  based  upon  sufficient 
legal  consideration. 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
with  costs  to  abide  event. 


REDFIELD  against  MIDDLETON. 

New  York  Superior  Court  •  General  Term,  June,  1863. 

PLEADING. — CAUSE  OF  ACTION  FOR  ACCOUNTING. 

Where  the  complaint  alleged  that  the  plaintiff  and  defendant  had  made  an 
oral  agreement  to  carry  on  the  business  of  publishing  books,  to  which  the 
plaintiff  was  to  contribute  contracts  with  authors,  &c.,  and  was  to  give  his 
personal  attention  for  several  years  at  a  salary,  and  afterwards  to  have 
an  interest  in  the  business,  and  further  alleged  that  under  such  agreement 
the  defendant  had  become  possessed  of  the  stereotype  plates  of  certain 
books,  the  right  to  publish  which,  upon  terms  set  forth  in  the  complaint 
was  contributed  by  the  plaintiff;  but  that  the  defendant  refused  to  perform 
the  agreement  or  to  form  the  business  connection  contemplated,  although 
the  plaintiff  had  been  at  all  times  ready  and  willing,  and  had  offered  to 
perform  ;  and  that  the  defendant  was  proceeding  to  publish  such  books  in 
his  own  name,  denying  that  the  plaintiff  had  any  interest  therein,  and 
refusing  to  surrender  the  plates  and  books,  though  the  plaintiff  had  de- 


16  ABBOTTS'  PRACTICE  REPORTS. 

I  Redfield  v.  Middleton . 

manded  them,  and  offered  to  indemnify  him ; — Held,  that  these  facts  \vere 
sufficient  to  constitute  a  cause  of  action  for  a  surrender  of  the  books  and 
plates,  and  an  accounting. 

The  former  decision  in  this  case  (REDFIELD  v.  MIDDLETON,  7  Bosw.,  649)  dis^ 
tinguished. 

APPEAL  from  an  order  overruling  a  demurrer  to  the  amended 
complaint  in  this  action. 

A  former  decision  upon  the  original  complaint  is  reported  in 
7  Bosw.)  649.  The  plaintiff  subsequently  served  an  amended 
complaint,  the  allegations  of  which  are  sufficiently  stated  in 
the  opinions. 

The  cause  was  heard  upon  the  demurrer,  before  Mr.  Justice 
WHITE,  at  a  special  term  in  December,  1862,  who  sustained  the 
complaint,  delivering  the  following  opinion  : 

WHITE,  J. — The  defendant  demurs  to  the  amended  complaint 
in  this  action,  on  the  ground  that  it  does  not  set  forth  facts  suf- 
ficient to  constitute  a  cause  of  action. 

All  the  statements  of  the  complaint  are  to  be  taken  as  true, 
and  they  are  in  substance  these  : 

The  plaintiff  had  formerly  carried  on  the  business  of  publish- 
ing! and  had  mortgaged  his  stock  and  material  in  that  business 
to  Bangs  Brothers  &  Co.,  who  took  possession  of  it  under  the 
mortgage,  and  placed  it  in  the  hands  of  a  trustee  for  sale.  Dur- 
ing this  condition  of  things,  the  defendant  and  plaintiff  made 
an  oral  agreement  in  January,  1860,  by  the  terms  of  which  the 
defendant  was  to  carry  on  the  business  of  publishing  as  suc- 
cessor of  the  plaintiff,  so  soon  as  he  (defendant)  could  purchase 
said  stock  and  material.  The  plaintiff  was  to  contribute  to  the 
business  his  contracts  with  authors,  his  influence  with  them 
and  others,  his  experience  and  knowledge  as  a  publisher,  and 
the  good-will  generally  of  the  business  formerly  carried  on  by 
him.  He  was  also  to  give  his  time  and  personal  attendance  to 
the  business  ;  and  for  this  he  was  to  receive  a  salary,  the 
amount  of  which  was  to  be  determined  at  a  future  time ;  and 
on  January  1,  1864,  he  or  his  appointee  was  to  receive  from 
the  defendant,  and  become  absolute  owner  of,  one-half  of  the 
then  business,  with  its  accumulated  stock  and  assets  of  every 
kind,  subject,  however,  to  one-half  of  the  then  liabilities  of  the 
concern. 

From  January  to  June,  1860,  the   plaintiff  received  from 


NEW  SERIES  ;  VOL.  I.  17 

Redfield  v.  Middleton. 

England,  from  R.  0.  Trench,  advance  sheets  of  two  of  his 
(Trench's)  works,  for  the  purpose  of  having  an  American  edi- 
tion of  each  issued  simultaneously  with  the  British  publication, 
and  under  an  agreement  between  the  plaintiff  and  Trench  that 
the  plaintiff  should  stereotype  and  publish  the  work,  and  that 
Trench  should  receive  ten  per  cent,  of  the  retail  price  of  the 
books,  and  that  the  plaintiff  have  all  the  remainder,  with  the 
Stereotype  plates.  The  plaintiff  ordered  the  stereotype  plates 
to  be  made  in  his  (the  plaintiff's)  name  and  upon  his  own 
credit. 

About  the  time  when  the  stereotype  plates  were  completed, 
the  defendant  effected  the  purchase  of  the  old  stock  and  mate- 
rial formerly  belonging  to  the  plaintiff,  and  entered  upon  the 
publishing  business  as  successor  of  the  plaintiff ;  and  the  plain- 
tiff thereupon,  in  pursuance  of  and  relying  upon  the  good  faith 
of  the  defendant  and  the  agreement  between  them,  permitted 
the  defendant  to  take  a  bill  of  sale  of  the  stereotype  plates  from 
the  founder,  and  to  give  his  note  to  the  founder  for  their  cost, 
being  $415. 

The  defendant  immediately  caused  an  edition  of  each  work 
to  be  printed,  and  advertised  them  for  publication  by  himself, 
as  successor  of  the  plaintiff.  The  plaintiff  then  requested  the 
defendant  to  have  the  oral  agreement  between  them  reduced 
to  writing  ;  but  he  refused  to  do  so,  and  repudiated  the  agree- 
ment in  all  its  parts,  stating  that  he  would  not  fulfil  any  stipu- 
lation of  it,  except  that  relating  to  the  payment  of  a  salary  to 
the  plaintiff;  and  denied  that  the  plaintiff  or  Trench  had  any 
right,  title,  or  interest  in  or  to  said  plates,  or  editions,  or  the 
profits  thereof.  The  share  of  the  business  and  its  assets  which 
the  plaintiff  was  to  have  in  January,  1864,  was  to  him  the 
most  valuable  of  the  consideration  of  said  agreement.  The 
plaintiff  could  and  would  have  paid  for  the  stereotype  plates 
when  they  were  completed  if  it  had  not  been  for  his  confidence 
in  the  defendant's  good  faith,  and  his  reliance  upon  the  agree- 
ment between  them. 

The  plaintiff,  upon  this  repudiation  by  the  defendant  of  their 
contract,  obtained  possession  of  the  defendant's  note  given  by 
him  for  the  plates,  and  tendered  it  to  the  defendant,  and  also 
offered  to  reimburse  him  all  the  expenses  he  had  incurred  about 
said  stereotype  plates  and  the  printing  of  said  works,  and  offered 

VOL.   I.— 2 


18  ABBOTTS'  PRACTICE  REPORTS. 

Redfield  v.  Middleton. 

to  idemnify  him  fully  against  any  liabilities  he  had  incurred 
in  the  business  ;  and.  he  demanded  from  the  defendant  the  ad- 
vance sheets  and  plates  and  the  printed  books.  With  this  de- 
mand the  defendant  refused  to  comply. 

The  plaintiff  now  brings  this  suit,  and  asks  judgment  that 
the  defendant  be  required  to  deliver  the  plates  and  books  to 
him,  upon  his  reimbursing  the  defendant  all  his  expenses,  and 
fully  indemnifying  him  against  all  liabilities  upon  account  of 
said  plates  or  works.  He  asks,  also,  for  an  account  of  any 
sales  made  of  the  books,  and  that  the  proceeds  be  paid  over  to 
him  by  the  defendant ;  he  also  alleges  that  the  defendant  has 
little  or  no  property,  and  is  pecuniarily  irresponsible,  and  that 
the  works  referred  to  are  valuable,  and  will  find  a  ready  and 
profitable  sale ;  and  he  further  avers  that  he  has  tendered 
performance,  and  is  ready,  fully,  to  perform  the  contract  upon 
his  part. 

I  think  these  facts  constitute  a  sufficient  I  cause  of  action 
They  allege,  in  effect,  that  the  defendant,  an  insolvent,  under 
the  pretext  of  forming  a  regular  permanent  business  connection 
with  the  plaintiff,  of  considerable  value  to  the  plaintiff,  ob- 
tained from  him,  as  part  of  his  contribution  to  the  proposed 
joint  undertaking,  the  privilege  of  advance  sheets,  and  means 
of  publishing,  two  works  of  much  profit  to  the  publisher  ;  an<i 
having  obtained  them,  he  published  the  works  and  refused  to 
form  the  connection,  or  quasi  partnership,  upon  the  promise  of 
forming  which,  he  obtained  from  plaintiff,  the  property  and 
interests  in  question.  This  is  so  fraudulent  upon  its  face,  that 
so  long  as  the  property  wrongfully  acquired  existed,  and  was 
in  its  nature  capable  of  recaption  and  delivery,  I  can  see  no 
reason  why  it  could  not  be  forthwith  retaken  by  the  plaintiff  in 
an  action  of  replevin. 

But  as  the  property  or  rights  acquired  by  the  defendant  in 
this  case  have  undergone  a  change  in  their  conditions,  or  been 
incorporated  with  other  rights  or  interests,  since  the  plaintiff 
parted  with  their  control,  the  present  application  to  the  equi- 
table powers  of  the  court  is  the  proper  form  of  proceeding,  and 
the  plaintiff  should  have  all  the  relief  which  the  power  of  the 
court  can  give. 

The  fact  that  the  contract  was  not  in  writing,  and  therefore 
void,  as  being  within  the  Statute  of  Frauds,  does  not  applj 


__  NEW  SEEIES ;  YOL.  I.  19 

Redfieldfl.  Middleton. 

here ;  because  the  action  is  not  brought  to  enforce  the  perform- 
ance of  any  contract,  but  simply  upon  the  averment  that  the 
defendant,  under  a  false  promise,  or  pretence,  that  he  would 
make  a  certain  contract  with  the  plaintiff,  obtained  the  plain- 
tiffs property ;  and  now,  while  refusing  to,  and  declaring  that 
he  will  not  fulfil  that  false  promise,  fraudulently  retains  and 
uses  the  property  and  interests  which  he  had  acquired  by 
means  of  making  it,  and  refuses  to  return  it,  or  to  account 
respecting  it,  although  requested  to  do  so  by  the  plaintiff. 

The  suggestion,  that  the  plaintiff  should  not  sue  the  defendant 
until  January,  186-i,  but  should  continue  to  serve  him  in  the 
mean  while,  and  allow  him  to  enjoy  the  interest  which  the 
plaintiff  had  contributed  to  the  business,  and  take  the  risk  of  a 
recovery  against  him  at  that  time  for  his  breach  of  contract,  is 
neither  sound  nor  reasonable.  The  plaintiff  could  be  no  more 
bound  to  go  on  and  give  his  time,  and  services,  and  means,  to 
the  defendant  for  four  years,  when  the  defendant  notified  him 
beforehand,  that  he,  defendant,  would  only  pay  him  half  price, 
or  no  price  at  all,  for  such  time,  and' services,  and  means,  than 
a  merchant  would  be  bound  to  continue  to  deliver  merchandise 
upon  a  contract  running  for  four  years,  to  an  insolvent  man, 
who,  upon  the  receipt  of  the  first  parcel,  should  refuse  to  pay 
for  it,  and  should  declare  that  he  never  would  pay  any  thing, 
or,  at  best,  but  a  very  small  fraction  of  the  value  or  contract 
price,  of  whatever  the  merchant  might  thereafter  deliver  to 
him.  Such  a  frank,  freebooting  purchase  would  receive  but 
slight  comfort  or  encouragement  from  any  court  of  justice, 
whose  process  the  despoiled  merchant  might  demand  for  the 
recovery,  in  specie,  of  the  first  parcel  which  his  unprofitable 
customer  had  succeeded  in  fraudulently  extracting  from  him. 

I  take  this  view  of  the  case  only  upon  the  assumption,  which 
a  demurrer  always  requires,  that  all  the  material  allegations  of 
the  pleading  demurred  to,  are  true. 

Upon  an  answer  taking  issue  upon  those  allegations,  the  case 
may  prove  to  be  a  very  different  one. 

But  as  it  stands  upon  the  demurrer,  I  must  order  judgment 
for  the  plaintiff,  with  costs ;  but  with  liberty  to  the  defendant 
to  answer  in  ten  days  after  notice  of  the  order  to  be  entered 
upon  this  decision,  upon  payment  of  the  costs  of  the  demurrer 
to  be  taxed. 


20  ABBOTTS'  PEAOTICE  KEPOKTS. 

Kedfield  v.  Middleton. 

From  the  order  entered  on  this  decision,  the  defendant  now 
appealed. 

F.  N~.  Bangs,  for  the  defendant,  appellant 

R.  Wynkoop)  for  the  plaintiff,  respondent. — I.  The  oral 
agreement  was  void  under  the  statute  ;  because,  by  its  terms, 
it  was  not  to  be  performed  within  one  year  from  the  making 
thereof.  But  this  is  not  an  action  to  compel  performance,  nor  is 
this  an  action  for  damages  for  breach  of  that  agreement. 

II.  The  agreement  being  void  (unless  reduced  to  writing, 
and  defendant  refusing  this),  there  would  be  no  force  in  the 
suggestion,  that  plaintiff  should  have  waited  till  January  1, 
1864.     He  could  not  then  enforce  specific  performance,  nor 
recover  damages  for  breach  of  contract. 

III.  This  is  an  action  to  recover  property  (or  its  proceeds), 
which  has  been  obtained  by  defendant  from  plaintiff  by  false 
pretences,   without   consideration,   and  by   a  promise   which 
defendant  now  repudiates,  and  which  cannot  be  enforced. 

IV.  An  injunction  and  a  receiver  were  asked  for,  and  should 
have  been  granted  ;  because  the  defendant  was  irresponsible, 
and  the  plaintiff's  rights  were  in  peril. 

Y.  The  advance  sheets  were  valuable  only  because  of  their 
exclusiveness.  That  value  passed  to  the  stereotype  plates,  and 
thence  to  the  books  printed  therefrom.  Defendant  possessed 
himself  of  that  value  by  fraud.  By  means  of  his  promise  to 
enter  into  business  with  plaintiff,  he  induced  plaintiff  to  allow 
him  possession  of  the  plates ;  having  obtained  possession,  he 
repudiated  his  promise. 

VI.  The  plaintiff  has  been  ever  willing,  ready,  and  able  to 
perform  his  part  of  such  oral  agreement. 

VII.  Plaintiff's  demand  of  possession  was  sufficient. 

VIII.  Plaintiff  is  now  entitled  to  judgment,  that  the  defend- 
ant account,  and  that  he  pay  over  to  plaintiff  all  the  pro- 
ceeds of  sales  of  said  books,  over  and  above  the  actual  cost  of 
the  manufacture  of  the  same,  and  of  the  stereotype  plates ;  and 
that  he  deliver  to  plaintiff  possession  of  said  plates,  and  the 
unsold  books  and  sheets  ;  and  to  further  judgment,  that  plaintiff 
is  entitled  to  injunction  and  receivership. 


NEW  SERIES  ;   VOL.  I.  21 

Redfield  v.  Middleton. 

BY  THE  COURT.* — Bos  WORTH,  CH.  J. — According  to  the  alle- 
gations in  the  complaint,  all  of  which  the  defendant,  by  de- 
murring, admits  to  be  true,  the  plaintiff  and  defendant  agreed, 
orally,  in  January,  1860,  that  the  defendant  should  enter  upon 
a  designated  business  as  soon  as  he  could  effect  a  specified 
purchase ;  that  the  plaintiff  was  to  make  certain  contributions  to 
such  business,  and  give  to  it  his  time  and  personal  attendance. 
The  defendant  was  to  pay  him  a  salary,  the  amount  of  which 
was  to  be  fixed  subsequently,  to  commence  at  the  time  of  such 
purchase  ;  and  on  the  first  of  January,  1861,  the  plaintiff  was  to 
have  one-half  of  the  business  in  its  then  condition,  subject,  to 
one-half  of  its  then  liabilities. 

That  in  January  and  June,  1860,  the  plaintiff  received  from 
R,.  C.  Trench  the  advance  sheets  of  two  works  to  be  stereotyped 
and  published,  said  Trench  to  have  ten  per  cent,  of  the  retail 
price  of  the  books,  and  the  remainder  of  the  profits  and  the 
plates  were  to  belong  to  the  plaintiff.  The  plaintiff  ordered 
the  stereotype  plates  made,  and  relying  upon  his  agreement 
with  and  the  good  faith  of  the  defendant,  allowed  a  bill  of  sale 
of  the  plates  to  be  made  to  defendant  for  their  price,  $450,  for 
which  the  defendant  gave  his  note. 

That  the  defendant  effected  the  purchase  first  mentioned, 
about  this  time,  and  although  the  plaintiff  demanded  it,  the 
defendant  refused,  and  still  refuses  to  reduce  the  oral  agreement 
to  a  written  one,  and  alleges  his  right  and  intention  to  carry 
on  the  business  for  his  own  exclusive  profit ;  that  he  has  not 
only  refused  to  sign  a  written  agreement  like  the  oral  one,  but 
"  declared  that  he  would  not  be  bound  by  such  agreement ; 
that  he  would  not  form  such  a  business  connection  with 
plaintiff." 

That  the  plaintiff  has  at  all  times  been  ready  and  willing, 
and  has  offered  to  perform  his  part  of  said  agreement,  and  to 
have  the  same  reduced  to  writing  and  signed  by  the  parties. 

That  the  defendant  caused  an  edition  of  said  works  to  be 
printed  in  his  own  name,  and  has  advertised  them  for  publica- 
tion by  himself,  as  successor  of  J.  S.  Redfield,  and  denies  that 
the  plaintiff,  or  Trench,  has  any  right,  title,  or  interest  in  said 
plates,  editions,  or  the  profits  arising  therefrom. 

*  Present,  BOSWOBTH,  Ch.  J.,  MONCRIEF  and  WHITE,  JJ. 


22  ABBOTTS'  PEAOT10E  EEPOETS. 

__  Redfield  v.  Middleton. 

That  the  plaintiff  has  offered  to  surrender  to  defendant  the 
note  lie  gave  for  the  plates,  and  to  indemnifj  him  against  loss 
or  any  expense  in  the  premises,  and  has  demanded  of  him  the 
plates,  and  the  sheets,  and  books  manufactured  therefrom, 
which  the  defendant  refuses  to  surrender ;  that  said  works  are 
valuable  and  salable ;  that  defendant  is  a  man  of  little  or  no 
property,  and  a  judgment  in  damages  against  him  would  not 
be  of  any  value,  as  plaintiff  believes. 

It  prays  that  defendant  be  adjudged  to  surrender  to  the 
plaintiff  "  said  plates,  sheets,  and  books,  and  to  account  for  and 
pay  to  plaintiff  the  proceeds  of  sales  thereof,  if  any  such  shall 
have  been  made,  upon  such  terms  as  the  court  may  adjudge," 
and  also  for  an  injunction  and  receiver,  pendente  lite. 

I  think  the  complaint  is  rather  inartificial.  But  it  alleges, 
in  substance,  that  the  defendant  is  possessed  of  certain  property 
of  the  plaintiff,  which  came  to  his  possession  as  part  of  plain- 
tiff's contribution  to  a  business,  which  he  agreed  to  prosecute 
for  the  common  benefit  of  the  two,  but  which  business  he  now 
refuses  to  prosecute  in  connection  with  the  plaintiff,  or  other- 
wise than  for  his  own  sole  and  exclusive  benefit. 

The  whole  consideration  for  the  transfer  has  failed,  and  that, 
too,  by  the  wrongful  conduct  of  the  defendant,  and  Xvithout 
fault  on  the  part  of  the  plaintiff.  An  action  in  damages  would, 
presumptively  be  of  no  value,  and  the  plaintiff's  damages  are  not 
susceptible  of  computation,  and  the  property  should  be  restored 
to  him,  on  such  terms  as  may  be  just. 

The  complaint  is  now  quite  different  from  the  one  before  us 
in  this  case  on  the  appeal  reported  in  7  JBosw.,  64:9,  as  Eedfield 
a.  Middleton. 

That  did  not  allege  that  the  plaintiff  had  offered  to  perform 
the  oral  contract  on  his  part  (/&.,  652).  That  did  not  allege 
that  the  defendant  declared  "  he  would  not  form  such  a 
business  connection  with  the  plaintiff,"  as  he  had  agreed  to  do 
(Ib.,  651). 

The  present  complaint  shows  the  extent  of  Trench's  interest, 
and  also  of  the  plaintiff's  interest,  under  the  contract  between 
them,  on  the  advance  sheets  and  sales  of  copies  of  the  works. 

The  present  complaint  shows,  though  not  as  clearly  as  more 
formal  averments  would  express  it,  that  the  plaintiff  has  offered 
to  perform  all  things  on  his  part,  and  that  the  defendant 


NEW  SERIES;   VOL.  I.  23 

Tilman  v.  Keane. 

refuses  to  have  the  business  connection  with  the  plaintiff  agreed 
upon.  The  agreement  would  be  void  by  the  Statute  of  Frauds, 
and  the  defendant  has  given  formal  notice  that  he  will  not  be 
bound  by  it,  or  act  under  it,  or  permit  any  thing  he  may  do, 
to  be  deemed  done  under  or  in  part  execution  of  it. 

I  think  the  complaint  states  a  cause  of  action,  and  that  the 
order  appealed  from  should  be  affirmed. 


TILMAN  against  KEANE. 

Supreme  Court,  first  District ;  Special  Term,  October,  1865. 
REFEREE'S  REPORT. — COSTS. — OFFER  TO  ALLOW  JUDGMENT. 

The  report  of  a  referee  must  contain  his  findings  of  fact,  and  conclusions 
of  law,  and  no  judgment  should  be  entered  upon  the  report  before  these 
are  filed. 

Where  the  amount  of  an  offer,  under  §  385  of  the  Code,  exceeds,  with  interest 
to  the  date  of  the  judgment,  the  judgment  actually  recovered,  the  latter, 
though  larger  than  the  actual  offer,  is  not  "  a  more  favorable  judgment" 
within  the  meaning  of  that  section,  and  does  not  carry  costs. 

The  referee  has  nothing  to  do  with  the  question  of  costs  in  an  action  on  a 
money  demand  on  contract. 

I.  Motion  for  an  order  requiring  the  referee  to  make  a  further 
report. 

This  action  was  brought  by  Leopold  Tilman  against  Maria  J. 
Keane,  for  a  money  demand  on  contract.  It  was  commenced 
December  1,  1862.  The  plaintiff,  in  his  summons  and  com- 
plaint, demanded  judgment  for  $1,741  11,  with  interest  from 
1st  September,  1862.  On  the  13th  December,  1862,  the  defend- 
ant appeared  in  the  action,  and  served  an  offer  to  allow  judg- 
ment to  be  entered  against  her  for  $984  94,  with  interest  from 
September  1st,  1862,  besides  costs,  under  section  385  of  the 
Code.  The  offer  not  having  been  accepted,  the  defendant  an- 
swered, and  the  cause  was  noticed  for  trial. 

When  it  was  reached  at  the  circuit,  November  17,  1863,  it 
was  referred  by  the  court,  on  the  ground  that  the  trial  would 
require  the  examination  of  a  long  account,  and  the  trial  before 
the  referee  was  commenced  a  few  days  later. 


24  ABBOTTS'  PRACTICE  REPORTS. 

Tilman  ®.  Keane. 

On  the  26th  of  July,  1865,  the  referee  made  his  report  in 
favor  of  the  plaintiff  for  $1,083  90,  and  costs  of  the  action. 

A  copy  of  the  report,  which  was  general,  and  in  the  form 
used  before  the  adoption  of  the  Code,  was  served  on  the  de- 
fendant's attorneys,  and  was  accompanied  with  a  bill  of  the 
plaintiff's  costs,  and  the  usual  notice  of  adjustment. "  On  an 
affidavit  stating  these  facts,  the  defendant  obtained  a  stay  of 
proceedings;,  and  moved  for  an  order  requiring  the  referee  to 
make  a  further  report. 

J.  S.  Carpentier,  for  the  motion. — I.  The  report  is  defective, 
because  it  does  not  "  state  the  facts  found,  and  the  conclusions 
of  law,  separately,"  as  required  by  section  2T2  of  the  Code,  and 
by  the  32d  rule  of  the  Supreme  Court,  (Roberts  v.  Carter,  28 
Barb.,  462.) 

II.  The  Court  should  order  a  further  report.    (Snook  v.  Fries, 
19  JBarb.,  313  /  Parsons  v.  Suydam,  3  E.  D.  Smith,  276  ;  Church 
v.  Erben,  4  Smdf.  691.) 

III.  If,  for  any  reason,  effect  could  not  be  given  to  the  order, 
the  court  should  set  aside  the  report  altogether.    (Peck  v.  Torks, 
14  How.  Pr.,  416.) 

John  0.  Robinson,  opposed. — The  report  is  in  full  compliance 
with  the  law,  and  no  special  report  can  be  required,  except 
where  the  party  appeals ;  when  he  must  make  a  case,  to  be 
settled  by  the  referee,  in  which  the  facts  found  and  the  conclu- 
sions of  law  should  be  stated.  (Johnson  v.  3  Whitlock,  13  N. 
Y.  [3  IEern.j\  344.)  This  last  case  virtually  abrogates  the  32d 
rule  of  this  court. 

Carpentier,  in  reply. — A  decision  of  the  Court  of  Appeals  is 
of  no  binding  force  in  mere  matters  of  practice  in  this  court, 
and  cannot  control  the  operation  of  its  positive  rules.  Much 
less  is  it  to  be  controlled  by  the  mere  opinion  or  dictum  of  one 
of  the  judges  of  that  court. 

INGKAHAM,  P.  J. — The  referee  should  state  the  findings  of 
fact  and  conclusion  of  law  in  his  report.  It  would  deprive  the 
party  of  his  right  to  except,  if  the  judgment  was  to  be  entered 
before  the  findings  of  the  referee  are  made  public.  The  law 
requires  him  to  except  within  ten  days  after  judgment  is  en- 


NEW  SEKIES  ;  YOL.  I.  25 

Tilman  v.  Keane. 

tered  notice  served.  If  the  findings  are  not  inserted  in  the  re- 
port, and  judgment  is  entered  without  them,  the  plaintiff  might, 
by  giving  notice  of  the  judgment  and  delaying  the  action  of 
the  referee,  deprive  the  other  party  of  their  power  of  except- 
ing within  the  ten  days.  (28  Barb.,  462.)  The  32d  rule  re- 
quires the  finding  to  be  in  the  decision. 

At  any  rate,  no  injury  can  arise  from  requiring  the  referee 
now  to  make  a  special  report. 

Motion  granted ;  costs  to  abide  the  event. 

II.  Appeal  from  taxation  of  costs. 

The  plaintiff  presented  to  the  clerk  a  full  bill  of  costs,  amount- 
ing to  over  $400,  which  he  claimed  to  have  adjusted  and  in- 
cluded in  the  judgment.  The  defendant  produced  a  copy  of 
the  offer  of  judgment  with  proof  of  service,  and  showed,  by 
computation,  that  the  amount  offered,  with  interest  added  to 
July  26,  1865,  the  date  of  the  report,  would  be  $1,185.26,  being 
an  excess  of  $101.36  over  the  sum  reported,  and  claimed  that 
the  plaintiff  was  only  entitled  to  costs  up  to  the  time  of  the 
offer.  It  was  also  claimed  that  the  defendant  was  entitled  to 
costs  of  the  action,  subsequent  to  the  offer. 

The  clerk  refused  to  adjust  the  defendant's  costs,  but  adjusted 
those  of  the  plaintiff  at  the  full  amount  claimed,  alleging  that 
he  was  bound  by  the  report  of  the  referee,  who  had  reported  in 
favor  of  the  plaintiff,  with  costs  of  the  action.  The  defendant 
appealed  from  the  taxation  of  plaintiff's  costs,  and,  on  an  affi- 
davit showing  the  above  facts,  moved  for  an  order  directing  the 
clerk  to  adjust  the  defendant's  costs  subsequent  to  the  offer,  and 
to  cause  the  proper  entries  awarding  those  costs  to  be  inserted 
in  the  judgment  roll. 

J.  S.  Carpentier,  for  the  motion. — The  plaintiff,  having 
"  failed  to  recover  a  more  favorable  judgment"  than  that 
offered  by  the  defendant,  is  not  only  barred  of  his  costs  subse- 
quent to  the  offer,  "  but  must  pay  the  defendant's  costs  from 
the  time  of  the  offer."  (Code,  §  385  ;  Schneider  v.  Jacobi,  1 
Duer,  694  ;  Kilts  v.  Seeber,  10  How.  Pr.,  270  ;  Budd  v.  Jack- 
son, 26  How.  Pr.,  398 ;  Burnett  v.  Westfall,  15  How.  Pr.,  420.) 

John  O.  Robinson,  opposed,  produced  the  certificate  of  the 
referee  that  the  offers  of  judgment  had  been  submitted  to  him, 


26  ABBOTTS'  PRACTICE  REPORTS. 

Tilfnan  v.  Keane. 

and  had  been  considered  by  him  in  awarding  costs  to  the  plain- 
tiff; that  the  interest  on  the  sum  offered,  $984.  94,  from  the  1st 
Sept.,  1862,  to  the  date  of  the  offer,  Dec.  13,  1862,  amounted 
to  $19.72,  making  the  total  $1,004  66  ;  and  that,  having  reported 
$1,083.90  due  the  plaintiff,  he  had  also  awarded  costs  to  him. 
An  offer  of  judgment  does  not  carry  interest  beyond  the  time 
of  the  offer,  and  is  not,  in  that  request,  like  a  verdict  or  report 
of  referees.  (Code,  §  310.)  Having  obtained  a  report  for  more 
than  the  offer  amounted  to,  with  interest  to  the  date  of  the 
offer,  the  plaintiff  has  recovered  a  more  favorable  judgment, 
and  is  entitled  to  the  costs  of  the  action. 

Mr.  Carpentier,  in  reply. — The  referee  had  nothing  to  do  with 
the  offer  of  judgment.  It  was  not  properly  before  him,  and 
the  plaintiff's  counsel  had  no  right  to  submit  it  to  him,  for  any 
purpose.  ]STot  having  been  accepted  as  provided  by  the  Code, 
it  was  deemed  withdrawn .  It  conld  not  thereafter  be  offered 
in  evidence,  and  was  only  available,  in  the  event  of  a  claim  by 
the  defendant  for  costs.  Besides,  the  referee's  principle  of 
computation  was  wrong.  Had  the  plaintiff  given  notice  of  the 
acceptance  of  the  offer,  he  might  have  entered  judgment  at  any 
time.  There  is  nothing  in  the  statute  requiring  him  to  act  upon 
it  promptly,  except  to  give  notice  of  acceptance,  any  more  than 
upon  a  verdict  or  a  referee's  report.  He  might  have  kept  it  in 
his  desk  until  the  26th  day  of  July,  1865,  and  then  entered 
judgment  for  $1,185.26,  with  costs  to  the  time  of  the  offer.  He 
has  forced  the  defendant  to  incur  large  expenses  to  resist  an 
unjust  claim,  and  it  is  but  right  he  should  pay  them. 

INGRAHAM,  P.  J. — On  the  13th  day  of  December,  1862, 
the  defendant  offered  to  allow  the  plaintiff  to  take  judg- 
ment for  $984.91,  with  interest  from  1st  September,  1862.  The 
plaintiff  did  not  accept  the  offer,  but  went  on  with  the  action, 
and  on  the  26th  July,  1865,  obtained  a  report  for  $1,083.90. 
If  the  plaintiff  had  accepted  the  defendant's  offer,  and  entered 
up  his  judgment  in  December,  1862,  for  the  amount  offered, 
the  judgment  would  have  been  entered,  and  the  amount,  in 
July,  1865,  with  interest  added,  would  have  exceeded  $1,150. 
It  is  very  clear,  therefore,  that  if  the  plaintiff  had  acted  on  the 
offer,  he  would  have  recovered  more  than  he  has  now. 

It  is  objected  by  the  plaintiff  that  the  offer  does  not  carry 


&     NEW  SERIES ;  VOL.   I.  27 

Huelet  v.  Reyns. 

interest  until  the  judgment  is  entered  up.  Even  conceding  this 
to  be  so  (which  I  do  not  admit),  still  the  plaintiffs  should  have 
accepted  the  offer  and  entered  up  his  judgment. 

If  he  may  let  his  action  remain  quiet,  and  does  not  proceed 
with  it  for  a  year  or  two,  the  whole  object  of  the  law  would  be 
defeated,  by  adding  the  interest  to  the  claim,  and  thereby/ 
making  it  larger  than  it  was  when  the  offer  was  made.  Such 
was  not  the  intent  of  the  law.  The  true  inquiry  is,  whether  the 
amount  recovered,  deducting  the  interest,  is  more  than  the  de- 
fendant admitted  in  his  offer.  The  referee  has  nothing  to  do 
with  the  question  of  costs. 

The  motion  must  be  granted. 

Order  accordingly. 


HUELET  against  REYNS. 
Supreme  Court,  first  District  /  /Special  Term,  JSFoveniber^  1865. 

AKKEST. — REFERENCE  OF  MOTIONS.     COUNTEK-CLAIM  TO  DEMAND 
FOR  CONVEESION. 


The  practice  of  referring  metions  to  vacate  orders  of  arrest  to  referees,  is 
objectionable.  Such  motions  should  be  determined  by  the  Judge,  upon 
the  affidavits  presented. 

In  an  action  brought  to  recover  the  value  of  chattels  of  the  plaintiff,  con- 
verted by  a  defendant,  it  is  not  ground  for  discharging  an  order  of  arrest 
that  the  defendant  has  a  claim  for  a  larger  amount  against  a  plaintiff. 

Where  goods  sold  on  credit  have  been  delivered,  a  vendor  should  proceed  by 
attachment  if  he  would  subject  the  goods  to  sale  for  payment  of  a  price. 
Retaking  possession  without  authority,  and  disposing  of  the  goods,  is  a 
conversion  ;  and  in  an  action  therefor,  the  indebtedness  of  the  plaintiff  to 
defendant,  for  the  price,  is  no  defence. 


28  ABBOTTS'  PRACTICE  REPORTS. 

Huelet  v.  Reyns. 

Motion  to  confirm  the  report  of  a  referee  and  discharge  an 
order  of  arrest. 

This  action  was  brought  by  Mathilde  Huelet  against  Guil- 
laume  Rejns.  The  facts  are  stated  in  the  opinion. 

Spilthorn  dk  Fogerty,  for  the  motion. 
Mr.  Coudert)  opposed. 

INGKAHAM,  P.  J. — The  defendant  was  arrested  in  this  action, 
which  according  to  the  original  affidavit,  appears  to  be  to 
recover  the  value  of  property  belonging  to  the  plaintiff,  and 
which  property  the  defendant  got  into  his  possession  from  the 
persons  in  whose  charge  the  plaintiff  placed  it,  without  her 
authority,  and  which  on  demand  he  refused  to  deliver  to  her. 

The  defendant  does  not  deny  the  plaintiff 's  title,  but  seeks 
to  excuse  the  taking  and  to  retain  the  property,  on  two  grounds. 
1st.  That  the  plaintiff  bought  the  property  from  him,  and  2nd, 
that  she  did  not  pay  for  it,  but  is  still  indebted  to  him  in  a 
large  amount  therefor. 

The  motion  sometime  since  was  referred  to  a  referee  to 
report  his  opinion,  and  he  has  reported  that  the  order  of  arrest 
should  be  vacated. 

I  am  very  much  embarrassed  in  the  decision  of  this  motion 
by  the  course  that  has  been  taken  in  regard  to  the  referee's 
report ;  that  such  references  or  motions  are  inexpedient,  I 
cannot  doubt.  A  large  mass  of  evidence  has  been  taken,  but 
not  in  my  judgment  changing  the  state  of  facts  as  they  appeared 
when  the  order  of  reference  was  made,  and  on  this  motion 
the  case  has  been  argued  in  every  aspect.  Exceptions  have 
been  taken  to  the  report  as  though  it  was  a  report  on  an  issue 
in  the  cause,  as  well  as  exceptions  to  the  admission  of  testimony, 
and  the  decision  of  the  referee  is  objected  to  as  against  the 
weight  of  evidence.  All  these  things  are  inexpedient  and 
improper  on  motions.  , 

Each  side  should  be  allowed  to  present  his  case  on  ex  parte 
affidavits  of  himself  and  of  others,  and  it  is  for  the  Judge  to 
decide  what  credit  and  weight  he  will  give  them,  and  on  this 
account  it  is  that  such  motions  cannot  with  propriety  be  sent 
a  reference. 


_^>J         NEW  SERIES ;  YOL.  I.  29 

Huelet  t>.  Reyns. 

The  referee  appears  to  have  considered  the  case  as  depend- 
ing on  the  question,  whether  the  goods  had  been  obtained  by 
fraudulent  representations  ;  and  finds  that  they  were  not,  and 
therefore  that  the  order  of  arrest  should  be  vacated. 

I  do  not  understand  the  defendant  as  denying  that  the  plain- 
tiff had  the  possession  of  the  property,  and  placed  it  in  the 
possession  of  other  parties  for  her  benefit,  nor  that  the  defend- 
ant procured  the  possession  of  it  without  her  consent.  I  con- 
sider, for  this  motion,  all  the  facts  to  be  as  found  by  the  referee  ; 
viz.,  that  this  property  was  in  the  hands  of  one  Cornelis  for  the 
account  of  the  plaintiff,  that  the  plaintiff  was  largely  indebted 
to  the  defendant,  and  in  part  for  these  goods  or  some  of  them, 
that  they  were  brought  here  from  Mexico  on  the  plaintiff's 
account,  that  when  defendant  found  the  goods  here,  he  was 
about  to  seize  them  by  attachment,  and  Cornelis  was  induced 
to  deliver  the  possession  of  them  to  the  defendant,  who  sold 
them  and  claimed  to  justify  his  refusal  to  deliver  them  on  the 
ground  of  the  plaintiff's  indebtedness  to  him. 

Taking  all  these  statements  to  be  facts,  it  seems  to  me  they 
show  no  defence  to  the  action.  1  lay  out  of  view  sundry 
charges  of  improper  intentions  as  to  the  dispositions  of  these 
goods  by  either  party,  whether  they  were  sent  from  France  to 
avoid  creditors,  or  were  to  be  improperly  introduced  into 
Mexico.  All  this  is  immaterial  here.  The  delivery  of  the  goods 
without  payment  or  on  credit,  vested  no  title  in  the  defendant. 
That  could  not  be  divested  except  by  plaintiff's  consent  or 
by  operation  of  law.  The  defendant's  possession  was  by  neither. 
The  delivery  to  him  by  Cornelis,  the  agent  of  the  plaintiff,  was 
beyond  his  authority,  and  vested  in  defendant  no  title  In  an 
action  to  recover  the  possession,  his  claims  against  the  plaintiff 
or  her  husband  for  moneys  due  him  would  be  no  defence.  If 
he  wanted  to  hold  the  property  to  secure  his  debt  he  should 
have  attached  it.  No  creditor  can,  without  his  debtor's  con- 
sent, obtain  possession  of  property  and  hold  it  as  security  for 
the  moneys  due  him.  Nor  can  he  offset  such  claims  against  a 
claim  for  the  property. 

These  principles  are  well  settled,  and  entirely  dispose  of  this 
motion . 

The  plaintiff  has  demanded  from  the  defendant  her  property, 
of  which  he  has  had  possession,  without  her  consent,  and  when 


30  ABBOTTS'  PRACTICE  REPORTS. 

Palmer's  Petition. 

demanded,  lie  refused  to  deliver  it,  and  says  he  lias  sold  it. 
This  amounts  to  a  conversion,  for  which  he  is  liable,  and  to 
•which  the  defendant  can  set  up  no  counter  claim. 

I  see  no  ground  on  which  a  defence  could  be  made  out  of 
these  facts. 

I  have  considered  these  questions  on  the  merits  as  they 
would  be  disclosed  on  a  trial,  but  it  is  proper  to  add  that  in 
cases  where  the  cause  of  the  arrest  must  be  proved  on  the  trial 
as  part  of  the  cause  of  action,  it  is  not  proper  to  try  the  question 
on  a  motion  to  discharge  the  defendant  from  arrest.  If  the 
plaintiff' s  affidavits  are  positive,  the  only  proper  question  for 
discussion  is  the  amount  for  which  the  defendant  should  be 
held  to  bail.  On  this  point  there  is  no  dispute  in  the  papers. 

The  motion  must  be  denied. 


PALMER'S  PETITION. 
Supreme  Court,  First  District ;  Special  Term,  June,  1865. 

Tlie  objection  that  the  assessors  have  assessed  property  for  a  local  improve- 
ment in  the  city  of  New  York  more  than  is  allowed  by  law,  may  be  raised 
for  the  first  time  before  the  Supreme  Court  on  a  motion  to  vacate  the 
assessment. 

Whore  two  members  of  the  Board  of  Kevision  and  Correction  of  Assessments 
meet  and  confirm  an  assessment,  without  the  presence  of  or  notice  to  the 
third,  their  proceedings  are  irregular ;  and  the  irregularity  is  not  cured 
by  a  subsequent  formal  approval  of  the  minutes  by  the  third  member  of 
the  Board  nor  by  the  Act  of  1861.* 

Motion  to  vacate  an  assessment  on  certain  lots  belonging  to 
Courtland  Palmer,  the  petitioner. 

The  petition  in  this  matter  asked  for  the  vacation  of  an  as- 
sessment on  lots  under  water  on  34:th  Street,  between  llth  and 
12th  Avenues,  belonging  to  the  petitioner,  on  the  grounds, 

*  Compare  Beekman'a  Petition,  Ablotts' Pr.,  244. 


NEW  SEEIES;  VOL.  I.  31 

Palmer's  Petition. 

first,  that  such  lots  being  under  water  were  not  benefited  by 
the  sewer  for  the  building  of  which  the  assessment  was  laid  ; 
second,  that  the  assessment  exceeded  one-half  of  the  value 
of  the  property,  as  fixed  by  the  assessors  of  the  ward,  the  valu- 
ation being  $100  per  lot,  while  the  assessment  was  $142  upon 
each  lot  except  the  corner  lot,  which  was  assessed  at  $193,12 ; 
and,  third,  that  the  assessment  list  was  only  presented  to  two 
of  the  board  of  Revision  and  Correction,  the  Recorder  being  ab- 
sent at  the  time  the  assessment  was  acted  on  by  the  Comp- 
troller and  Corporation  Counsel. 

The  affidavits  showed,  on  this  latter  point,  that  on  the  llth 
of  July,  1861,  when  the  assessment  list  was  presented  and  con- 
firmed, only  the  Comptroller  and  Counsel  to  the  Corporation 
were  present,  but  that  on  the  24th  July,  1861,  their  next  meet- 
ing, the.  Comptroller  and  Recorder  being  present,  the  minutes 
of  the  previous  meeting  were  read  and  approved. 

Anderson  &  Dames  for  the  petitioner. 

John  E.  Develin  for  the  respondent. — I.  Under  the  Act  of  1861, 
chap.  308.  §  1,  declaring  that  an  assessment  if  not  confirmed  within 
thirty  days  shall  be  deemed  confirmed,  all  defects  were  cured. 

II.  The  presence  of  the  Recorder  was  not  necessary.     If  he 
were  notified  and  failed  to  appear,  a  majority  could  act,  and  in 
the  absence  of  all  negative  testimony  the  Recorder  must  be 
presumed  to  have  been  notified  (Horton  v.  Garrison,  23  Barb., 
176 ;  People  v.  Walker,  Ib,,  304  ;  People  on  rel.  McSpedon  v. 
Supervisors,  10  Abl).  Pr.,  233  ;  Yates  v.  Russell,  17  Johns.,  461 ; 
People  v.  Carpenter,  24  K  Y.,  86). 

III.  The  other  objections  are  not  available  to  the  petitioner. 
They  are  to  matters  in  the  judgment  of  the  Commissioners,  and 
can  not  be  raised  here  unless  they  were  taken  before  the  Com- 
missioners (16  Johns.,  281 ;  19  Wend.,  649 ;  Jb.,  657 ;  Ib.,  680 ;  15 
Wend.,  374,  377;  28  Barb.,  609;  1  Sandf.,  283. 

SUTHERLAND  J. — I  am  clearly,  of  the  opinion,  that  the  ap- 
plication must  be  granted  on  two  of  the  grounds  ;  1st,  that 
the  assessments  on  14  of  the  lots,  greatly  exceeded  the  amounts 
or  sums  authorized  by  the  Act  of  May  14th,  1840  ;  2d,  that  the 
assessment  list  was  presented  to,  and  confirmed  by  only  two 
members  of  the  Board  of  Revision  and  Correction,  under  the 
Act  of  April  17th,  1861. 


32  ABBOTTS'  PRACTICE  REPORTS. 

^__ Dikeman  v.  Puckhafer. 

As  to  the  first  of  these  grounds;  the  Act  (May  14th,  1840, 
557)  expressly  declares,  that  the  commissioners  or  assessors, 
"  shall  in  no  case  assess  any  house,  lot,  improved  or  unim- 
proved lands,  more  than  one  half  the  value  of  such  house,  lot, 
improved  or  unimproved  land,  as  valued  by  the  assessors  of  the 
ward  in  which  the  same  shall  be  situated." 

The  proofs  conclusively  show,  that  14  of  the  lots  were  as- 
sessed nearly  three  times  the  amount  allowed  by  this  provision 
of  the  Statute. 

As  to  the  2d  of  these  grounds  ;  the  proofs  conclusively  show, 
that  only  two  members  of  the  Board  met  and  acted  ;  and  I  am 
of  the  opinion,  tnat  I  have  no  right  to  presume  that  the  third 
member  of  the  Board,  even  had  notice  of  the  meeting. 

I  am  also  of  the  opinion,  that  the  subsequent  formal  general 
approval,  when  the  Recorder  was  present,  of  the  minutes  of  the 
previous  meeting,  could  not,  and  did  not,  cure  or  remedy  this 
defect  or  irregularity.  Nor  in  my  opinion  is  this  defect  or  ir- 
regularity cured  or  remedied  by  the  provision  of  the  Act  of 
1861,  that  assessment  lists  not  confirmed  within  30  days  after 
presentation,  shall  be  deemed  confirmed ;  the  Board  or  two  of 
the  members  of  the  Board,  in  this  case,  having  in  fact  under- 
taken to  Act  on,  and  to  confirm  the  assessment  list.  Having 
so  undertaken  to  act,  and  to  actually  confirm,  the  regularity 
of  the  confirmation  must  be  tested  by  the  regularity  and  force 
and  effect  of  this  action,  and  pretended  actual  confirmation. 

My  conclusion  is,  that  the  application  to  vacate  the  assess- 
ment must  be  granted. 


DIKEMAN  against  PUCKHAFER 
New  York  Common  Pleas  ;  General  Term,  April,  1865. 
CHATTEL  MORTGAGE. — RECORDING. 

A  chattel  mortgage  which  does  not  specify  a  time  for  payment  is  dne 
immediately,  and  no  demand  for  payment  is  necessary  to  sustain  an 
action  upon  it 


NEW  SERIES;   VOL.  I.  33 


Diketnan  v.  Puckliafer. 


It  is  the  duty  of  the  Register  to  index  a  chattel  mortgage  duly  filed  withhim} 
and  his  omission  to  do  so  cannot  prejudice  the  lien  of  a  mortgagee  who  has 
done  all  required  of  him  to  make  the  mortgage  valid. 

Appeal  from  a  judgment  of  a  District  Court. 
The  facts  are  fully  stated  in  the  opinion. 

BY  THE  COURT — CAKDOZO,  J. — In  January,  1863,  the  plain- 
tiffs sold  to  Messrs.  Boscomp  &  Schiffer  a  grocer's  wagon,  and 
took  back  a  mortgage  on  it  for  the  purchase  money,  viz  :  $100. 
The  mortgage  did  not  specify  any  time  for  payment,  and  con- 
sequently was  due  immediately  (Rowland  v.  Willett,  3  Sandf., 
607),  and  it  was  not  necessary  to  demand  payment  of  it  to 
enable  the  plaintiffs  to  maintain  this  action  (Rowland  v.  Wil- 
lett, supra;  Brown  v.  Cook,  3  E.  D.  Smith,  123). 

The  plaintiffs  duly  filed  the  mortgage  in  the  Register's  office, 
but  the  Register  appears  not  to  have  properly  indexed  it  ac- 
cording to  the  Act  of  1849,  and  this  omission,  attributable  pro- 
bably'to  the  difficulty  of  deciphering  the  names  of  the  mort- 
gagors, lias  led  to  the  dispute  between  the  parties  and  to  this 
suit. 

After  the  filing  of  the  mortgage,  the  defendants  purchased 
the  wagon,  with  other  property,  from  the  mortgagors,  paying 
for  it  by  crediting  them  with  the  amount  of  an  old  indebtedness  - 
of  $172,  paying  on  their  account  to  one  Hecker  (who  had  a 
mortgage  on  this  wagon)  $100,  and  also  paying  to  the  mort- 
gagors the  sum  of  $40  in  cash.  The  defendants,  before  making 
the  purchase,  examined  the  index  of  chattel  mortgages  in  the 
Register's  office,  but,  by  reason  of  the  omission  of  the  Register; 
they  failed  to  discover,  and  they  had  not  any  notice  in  fact  of 
the  existence  of  the  mortgage.  The  plaintiff  demanded  this 
Wagon  from  the  defendants,  but  they  refused  to  surrender  it, 
and  claim  to  hold  it  discharged  of  the  lien  of  the  mortgage  to 
the  plaintiffs.  A  demand  before  suit  brought  is  distinctly  and 
positively  sworn  to  by  the  plaintiff  Seabold,  and  therefore^ 
while  I  incline  to  think  that  a  demand  after  the  summons  had 
issued  would  not  be  sufficient,  it  is  unnecessary  to  determine 
that  point. 

The  jury  found  for  the  defendants.  I  think  the  verdict  con- 
trary to  law. 

Upon  the  evidence,  the  plaintiffs  had  done  all  they  were  re- 
N.  S.— VOL.  I.  —3, 


34  ABBOTTS'  PEACTICE  REPORTS. 

De  Forest  v.  Baker. 

quired  to  do  to  make  the  mortgage  to  them  valid.  A  duty, 
viz.,  to  index  the  mortgage,  rested  on  the  Register,  with  which 
the  plaintiffs  had  nothing  to  do,  over  which  they  had  no  control, 
and  the  omission  of  which  was  not  their  fault.  They  were 
bound  to  file  the  mortgage,  and  they  did  so.  That  the  defen- 
dants did  not,  through  the  registry,  obtain  notice  of  this  mort- 
gage was  not  the  plaintiff's  fault,  and  cannot  affect  their  rights 
(see  Dodge  v.  Potter,  18  Barb.,  193). 

The  mortgage  was  given  for  a  valid  and  valuable  considera- 
tion, the  T)ona  fides  of  it  was  not  attempted  to  be  impeached  ; 
it  was  filed  pursuant  to  the  statute,  and  the  defendants,  if  they 
have  been  misled  into  parting  with  their  money  for  the  wagon 
in  ignorance  of  the  plaintiff's  lien,  must  seek  redress  against 
the  officer  whose  omission  to  do  his  duty  has  operated  to  their 
loss.  They  cannot  claim  to  hold  the  property  free  of  the 
mortgage. 

The  judgment  should  be  reversed. 


DE  FOREST  against  BAKER. 
New  York  Superior  Court',  General  Term,  November,  1863. 

COMPLAINT  UPON  UNDERTAKING. — ALLEGATION  OF  DISSOLUTION 
OF  INJUNCTION. JUDGMENT  AFTER  ANSWER  STRUCK  OUT. 

In  an  action  upon  an  undertaking  which  was  given  upon  issuing  an  injunction, 
and  was/conditioned  to  pay  all  damages  sustained  thereby  "  if  the  Court  shall 
finally  decide  that  the  plaintiff  (in  the  injunction  suit)  was  not  entitled 
thereto,"  if  the  complaint  avers  that  judgment  has  been  rendered  in  the 
injunction  suit,  in  favor  of  the  defendants,  but  does  not  disclose  the  ground 
of  the  judgment,  nor  aver  in  terms  that  the  Court  has  decided  that  the 
plaintiff  therein  was  not  entitled  to  the  injunction,  an  answer  merely  deny- 
ing that  it  has  been  so  decided,  and  that  the  present  plaintiff  has  been 
damnified,  and  that  defendant  is  indebted  to  him,  is  not  irrelevant,  but  raises 
a  material -issue. 


NEW  SEEIES ;  VOL.  I.  35 


De  Forest  v.  Baker. 


Nor  is  it  shown  to  be  sham,  by  an  affidavit  stating  that  the  complaint  in 
the  injunction  suit  was  dismissed,  but  not  disclosing  on  what  ground. 

When  an  answer  is  struck  out  as  sham  and  irrelevant,  the  proper  method 
of  obtaining  judgment  is  proceed  as  if  no  answer  had  been,  put  in.  If 
the  summons  be  for  relief,  the  defendant  is  entitled  to  the  usual  notice  of 
application  for  judgment,  after  the  answer  has  been  stricken  ont. 

APPEAL  by  the  defendant  Baker,  from  an  order  striking  out 
his  answer  in  the  action,  and  giving  judgment. 

The  action  was  brought  by  BENJAMIN  DEFOREST  and  CHARLES 
L.  ROWAN,  against  ALEXANDER  STRONG  and  CHARLES  "W.  BAKER, 
to  recover  on  an  undertaking  given  by  the  defendants,  upon 
the  issuing  of  an  injunction  against  the  plaintiffs,  in  an  action 
previously  brought  against  the  latter  in  the  Supreme  Court, 
by  one  Robert  Strong. 

The  complaint  in  the  present  action  averred  the  commence- 
ment of  the  injunction  suit,  and  the  giving  of  the  undertaking, 
which  was  in  the  usual  form. 

The  other  allegations  of  the  complaint  which  were  drawn 
in  question,  and  those  of  the  answer,  are  stated  in  the  opinion 
of  the  Court  The  complaint  demanded  judgment  for  five 
hundred  and  seventy  dollars,  the  amount  awarded  as  damages 
by  a  reference  in  the  usual  manner  in  the  Supreme  Court. 

The  plaintiffs  moved  to  strike  out  this  answer  as  sham  and 
irrelevant,  and  for  judgment.  The  motion  was  founded  on 
the  pleadings  and  on  an  affidavit  by  Samuel  Brown,  their 
attorney,  stating  that  the  complaint  in  the  injunction  suit  "  was 
dismissed,  and  judgment  thereupon  entered  in  favor  of  the 
plaintiffs,  against  said  Robert  Strong,  as  referred  to  in  the 
complaint  in  this  action."  It  also  set  forth  the  proceedings 
upon  the  reference  and  the  order  confirming  the  award,  and 
allowing  the  present  plaintiffs  to  sue  therefor.  Among  the 
papers  produced  also  were  papers  in  an  appeal  from  such  order 
in  the  Supreme  Court,  and  an  undertaking  given  thereon  to 
secure  a  stay  of  proceedings  on  the  order. 

The  motion  from  which  the  present  appeal  was  taken  was 
heard  before  Mr.  Justice  Moncrief  at  Special  Term,  who  granted 
it,  July  1,  1863. 

M.  J.  Bacon,  for  defendant  appellant. 


36  ABBOTTS'  PKACTICE  KEPOKTS. 

De  Forest  v.  Baker. 

I.  Tlie  appeal  (with  undertaking)  from  the  order  of  the  Su- 
preme Court,  stopped  all  proceedings  under  that  order  (Code, 
§  342). 

II.  The  answer  was  a  good  and  sufficient  defence,  and  should 
not  have  been  struck  out  .as  frivolous,  because  on  its  face  it 
was  not  taken  merely  for  delay  (2  Abb.  P/\,  414 ;  12  How. 
P.,  543). 

II.  Upon  its  face,  and  in  fact  and  law,  the  answer  is  a  per- 
fect and  complete  defence,  especially  as  it  was  accompanied 
with  an  affidavit  of  merits.  Unless  apparent  that  it  was  not 
interposed  in  good  faith  (2  Sandf.,  680). 

Samuel  .Brown,  for  plaintiff  respondent. 

The  only  question  before  the  Court  at  Special  Term  was  the 
character  of  the  answer  interposed  on  behalf  of  defendant 
Baker. 

There  was  no  evidence  before  the  Court  that  an  appeal  had 
been  taken  from  the  order  made  by  the  Supreme  Court,  or 
that  the  proceedings  in  that  Court  had  been  stayed  by  security 
or  otherwise  ;  or  that  any  stay  had  been  applied  for,  or  granted 
in  this  Court,  and  the  fact  was  otherwise. 

I.  The  answer  does  not  take  issue  upon  any  material  allega- 
tion on  the  complaint. 

The  defendant  on  the  hearing  of  the  motion  did  not  deny 
that  the  complaint  in  the  original  action  had  been  dismissed, 
and  that  judgment  had  been  rendered  and  entered  for  defend- 
ant as  alleged  in  the  complaint. 

Nor  does  the  answer  deny  that  by  an  order  of  the  Supreme 
Court  made  in  pursuance  of  the  terms  of  the  undertaking  the 
damages  of  plaintiff  were  assessed  at  five  hundred  and  seventy 
dollars. 

II.  The  second  allegation  of  defendants'  answer  is  evasive  and 
irrelevant  and  false.  The  dismissal  of  plaintiff's  complaint,  and 
rendition  and  entry  of  judgment  for  defendant  as  set  forth  in 
the  complaint,  was  the  final  decision  referred  to  in  the  under- 
taking,   and  was  conclusive  evidence  on  this   point   (Loomis 
v.  Brown,  16  Barb.,  325  ;  Weeks  v.  South  wick,  12  How.  PrmJ 
170 ;  Mutual  Safety  Insurance  Company  v.  Roberts,  4  Sandf. 
C.  JR.,  592  ;  Hoyt  v.  Carter,  7  How.  Pr.,  140) ;  the  defendant 
subsequently  submitting  to  a  reference  was  also  evidence  of  the 
final  determination  of  the  argued  action. 


NEW  SEKIES;  VOL.  I. 


De  Forest  v.  Baker. 


III.  The  defendant's  denial  that  plaintiff  had  suffered  any 
damage,  was  also  false  in  fact.  .Because  defendant  admits  that 
the  damages  were  assessed  by  the  Court  in  a  proceeding  in 
which  they  opposed  his  motion  and  litigated  the  question  of 
damage. 

IY.  The  extent  of  defendant's  liability  was  fixed  by  the  p'Yo- 
ceedings  in  the  Supreme  Court,  and  in  this  action  they  would 
only  be  allowed  to  plead  new  defences  to  their  liability  on 
the  undertaking  (Methodist  Churches  v.  Barker,  18  JUT.  Y~., 
463  ;  Wilde  v.  Joel,  15  How.  Pr.,  320.) 

V.  The  defendant's  answer  was  sham  and  irrelevant,  and  the 
order  should  be  affirmed  with  costs  (Lee  Bank  v.  Kitching,  Y 
Bosw.,  664 ;  Edgerton  v.  Smith,  3  Duer,  614 ;  Kurtz  v.  Me- 
Guire,  5  Duer,  660 ;  The  People  v.  McCumber,  18  N.  Y., 
315.) 

BY  THE  COURT.* — BOSWOETH,  CH.  J. — The  complaint  avers 
that  judgment  has  been  rendered  in  the  injunction  suit  in 
favor  of  the  defendants  therein,  and  the  judgment  roll  filed, 
&c.,  "whereby  it  appears  that  said  Robert  Strong  (the  plaintiff 
in  the  injunction  suit)  was  not  entitled  to  said  injunction." 

The  answer  alleges,  second,  that  the  defendant,  "denies 
that  it  has  been  decided  that  said  Robert  Strong  in  said  com- 
plaint mentioned  was  not  entitled  to  the  injunction  in  said 
action."  If  it  was  not  in  fact  so  decided,  or  if  the  judgment 
rendered  does  not  import  that,  in  legal  effect,  then  the  defend- 
ants are  not  liable. 

It  is  not  stated,  in  what  manner,  or  on  what  grounds  the 
judgment  was  rendered,  nor  is  it  stated  that  the  Court  decided 
that  Strong  was  not  entitled  to  the  injunction,  unless  such  a 
statement  is  involved  in  the  allegation,  "  whereby  it  appears 
that  said  Robert  Strong  was  not  entitled  to  said  injunction." 

If  the  judgment  was  rendered  on  a  trial  of  the  action  on  the 
merits  of  the  case  made  by  the  complaint,  or  on  a  dismissal 
of  the  complaint  for  want  of  prosecution,  then  the  injunction 
would  be  dissolved  by  the  judgment  rendered,  and  the  judg- 
ment would  be  a  final  determination  of  the  rights  of  the  parties 
in  that  action  (Code  of  Pro.,  §  245  ;  Carpenter  v.  Wright,  4 
JBosw.,  655). 

*  Present,  BOSWOKTH,  Ch.  J.,  WHITE  and  MONELI,,  ,TJ. 


38  ABBOTTS'  PRACTICE  REPORTS. 

De  Forest  v.  Baker. 

But  judgment  may  have  been  given  for  the  defendants  in 
that  suit,  solely  by  reason  of  matters  of  defence  arising  after 
suit  brought,  and  on  grounds  conceding  that  the  injunction 
was  rightly  issued. 

Whether  the  plaintift  means  by  the  words,  "  whereby  it  ap- 
pears that  said  Robert  Strong  was  not  entitled  to  said  injunc- 
tion," that  such  a  result  is  manifested  by  the  mere  fact  that 
judgment  was  given  for  the  defendants,  irrespective  of  the 
grounds  of  the  judgment ;  or  that  the  record  discloses  that  the 
Court  so  adjudged,  it  is  not  easy  to  determine.  I  think,  how- 
ever, that  he  does  not  mean  to  allege  in  the  use  of  those  words, 
that  the  Court  has  in  terms  so  decided.  It  is  certainly  not 
averred  in  terms,  that  the  Court  did  so  decide  :  the  answer, 
substituting  "  says  "  for  "  denies,"  would  contain  a  direct  and 
unequivocal  averment  that  the  Court  has  not  so  decided.  And 
this  is  broad  enough  to  exclude  the  fact  of  a  decision  to  that 
eifect,  either  in  terms  or  legal  effect. 

This  is  not  an  irrelevant  allegation,  nor  is  it  sham  in  the 
sense  that  it  is  shown  to  be  untrue.  Not  being  irrelevant, 
nor  shown  to  be  untrue,  it  cannot  be  stricken  out  on  motion. 

The  affidavit  of  Mr.  Brown  the  plaintiff's  attorney,  states 
that  the  complaint  in  the  injunction  suit  was  dismissed;  but 
does  not  say  whether  it  was  for  want  of  prosecution,  or  on 
what  ground. 

The  defendant's  counsel  insisted  on  the  argument  that  it 
was  dismissed  for  want  of  prosecution,  and  his  view  is  that  a 
judgment  for  the  defendants  on  that  ground  is  not  a  final  de- 
cision that  the  plaintiff  was  not  entitled  to  the  injunction, 
within  the  meaning  of  the  undertaking. 

In  that  I  think  he  is  mistaken  (Code,  §  245  ;  4  J3osw.,  655). 
If  his  answer  be  stricken  out  as  sham,  he  cannot  test  the  accu- 
racy of  his  views.  It  is  not  sham,  if  his  view  of  the  law  is 
correct,  and  the  judgment  proceeded  on  the  grounds  stated. 

But  inasmuch  as  the  complaint  does  not  show  on  what  grounds 
the  judgment  was  rendered  ;  and  the  answer  avers  in  substance 
that  it  has  not  been  decided  that  Strong  was  not  entitled  to  the 
injunction  ;  the  latter  averment  presents  an  issue,  on  the  decis- 
ion of  which  the  question  of  the  defendant's  liability  depends. 

And  as  the  pleadings  present  this  question,  it  cannot  be  said, 
that  the  allegation,  denying  the  defendant's  indebtedness,  or 


NEW  SERIES;  VOL.  I.  39 

De  Forest  v.  Baker. 

that  the  plaintiffs  have  sustained  damages  within  the  meaning 
of  the  undertaking,  is  false  or  irrelevant. 

If  it  has  not  been  finally  decided  in  the  injunction  suit  that 
Strong  was  not  entitled  to  the  injunction,  within  the  meaning 
of  the  words,  "  finally  decide,"  as  used  in  the  Code  and  the 
undertaking,  then  it  follows  that  these  plaintiffs  have  not  in 
judgment  of  law,  sustained  damages  by  reason  of  the  injunc- 
tion, and  the  defendants  are  not  indebted  to  them. 

The  order  appealed  from  strikes  out  the  answer  as  sham  and 
irrelevant,  and  orders  "  judgment  as  demanded  in  the  com- 
plaint." When  an  answer  is  thus  stricken  out,  the  plaintiff 
proceeds  to  perfect  judgment,  precisely  as  if  no  answer  has 
been  put  in. 

The  summons  in  this  case  is  one  for  relief.  The  clerk  cannot 
enter  judgment  under  §  246  of  the  Code,  because  there  is  no 
"  amount  mentioned  in  the  summons." 

As  the  plaintiffs  must  apply  to  the  Court  for  the  relief 
demanded  in  the  complaint,  the  defendants  are  entitled  to 
eight  days'  notice  thereof  (Code,  §  246,  sub.  2).  This  notice 
cannot  be  given  until  the  action  is  in  such  a  stage  that  it  can 
truly  be  said  that  an  answer  is  due,  and  there  is  no  answer  in 
the  action. 

I  think  this  order  should  be  reversed. 

Ordered  accordingly. 


ABBOTTS'   PRACTICE  REPORTS. 


Morgan  v.  Morgan. 


K      n/f"  MORGAN  against  MORGAN. 

r/ 
Supreme  Court,  Fifth  District ;  Special  Term,  Nov.,  1865. 

COSTS  ON  APPEAL  FROM  SURROGATE'S  COURT. 

Upon  an  appeal  to  the  Supreme  Court  from  a  Surrogate's  Court,  the  suc- 
cessful party  is  not  entitled  to  costs  as  in  a  civil  action,  at  the  rates  fixed 
by  section  307  of  the  Code  of  Procedure,  but  only  the  costs  of  trial  of  an 
issue  of  law. 

Motion  for  retaxation  of  costs. 

An  appeal  was  taken  to  the  Supreme  Court  from  a  decree  ren- 
dered by  the  Surrogate  of  the  County  of  Oneida  in  favor  of  a 
former  guardian  against  his  late  ward  and  her  new  guardian,  in 
a  proceeding  to  settle  the  accounts  of  the  former  guardian  after 
his  removal.  The  appeal  was  argued  at  a  general  term  for  the 
Fifth  District,  held  in  April,  1865,  and  the  decree  of  the  Surro- 
gate affirmed.  The  attorney  for  the  guardian  thereupon  noticed 
his  costs  for  taxation  before  the  Clerk  of  the  County  of  Oneida, 
and  objection  being  made  that  the  order  of  affirmance  said  no- 
thing about  the  costs  of  the  appeal,  and  that  he  could  have  no 
costs  without  a  special  direction  to  that  effect,  the  bill  was  with- 
drawn, and  a  motion  made  at  a  subsequent  general  term  of  the 
same  district  to  modify  the  order  of  affirmance  by  awarding 
costs  to  the  respondents.  After  argument  of  that  motion,  the 
following  order  was  made  : 

[Title  of  the  cause.~\  At  a  General  Term,  &c. 

"  Order  of  April  general  term,  1865,  amended,  by  directing 
that  the  costs  of  the  appeal  be  paid  to  the  plaintiff  by  the  guar- 
dian of  the  defendant  out  of  the  infant's  estate." 

The  attorney,  for  the  guardian  thereupon  noticed  his  costs 
again  for  taxation,  and  presented  to  the  clerk  a  bill  containing, 
besides  disbursements,  the  following  items  : 

"  For  proceedings  before  argument,  $20  :  for  argument,  $40." 
Upon  the  objection  of  the  attorney  for  the  appellants,   these 
two  items  were  stricken  out  by  the  clerk,  who  allowed  in  place 


NEW  SERIES ;  YOL.  I.  41 

Morgan  v.  Morgan. 

thereof  the  sum  of  twenty  dollars  for  the  trial  of  an  issue  of  law, 
and  taxed  the  respondent's  costs  at  twenty  dollars  and  disburse- 
ments. The  respondent  thereupon  moved  to  set  aside  the  taxa- 
tion, and  for  an  order  directing  the  clerk  to  allow  him  upon  a 
new  taxation  the  items  so  stricken  out. 

0.  8.  Williams,  for  the  motion. 
D.  0.  Calvin,  opposed. 

MULLIN,  J. — Before  the  Code,  an  appeal  from  the  decision  of 
a  Surrogate  in  a  proceeding  to  settle  the  account  of  a  guardian, 
belonged  to  the  Court  of  Chancery  (2  Statutes  at  Large,  158,  §  13). 
And  the  costs,  when  allowed,  were  the  taxable  costs  given  in 
cases  of  appeal  in  Chancery  (2  Id.,  642,  §  35). 

By  the  Judiciary  Act  the  powers  of  the  Chancellor  and  of  the 
Court  of  Chancery  were  transferred  to  and  vested  in  the  Supreme 
Court  as  organized  by  that  Act  (4  Statutes  at  Large,  559,  §  14). 
The  General  Term  has,  since  the  Judiciary  Act  became  a  law, 
heard  and  decided  appeals  from  the  decisions  of  surrogates. 

The  Code  prior  to  1862  expressly  excluded  appeals  from  the 
decisions  of  surrogates  from  the  provisions  of  the  2nd  part  of  that 
statute  (Code,  §  471).  It  followed  that  while  appeals  were  still 
allowed  under  this  provision  of  the  Revised  Statutes  from  the  de- 
crees of  surrogates,  the  costs  given  by  the  Code  could  not  be  re- 
covered, and  must  have  been  taxed  under  the  fee  bill  applicable 
to  suits  in  chancery  in  force  when  the  Code  took  effect. 

In  1862,  §§  318  and  471  of  the  Code  of  Procedure  were  amend- 
ed. In  the  first  were  inserted  the  words  "  including  appeals  from 
surrogates'  courts,"  so  that  these  appeals  were,  as  to  costs,  put  on 
the  same  footing  with  appeals  in  proceedings  to  review  the  de- 
cisions of  inferior  courts  in  special  proceedings,  and  thereafter, 
such  proceedings,  including  appeals  from  surrogates'  courts,  for 
all  purposes  of  costs,  were  to  be  deemed  actions  at  issue  on  a 
question  of  law,  from  the  time  the  same  shall  be  brought  in  the 
Supreme  Court,  and  costs  are  to  be  awarded  and  collected  in 
such  manner  as  the  Court  shall  direct,  according  to  the  nature 
of  the  case.  The  amendment  of  §  318  made  it  necessary  to 
modify  §  471,  and  it  was  accordingly  amended  by  inserting 
after  the  clause  excluding  appeals  from  surrogates'  courts  from  the 
operation  of  the  second  part  of  the  Code  these  words — "  Except 
that  the  costs  on  such  appeal  shall  be  regulated  and  allowed  in 
the  manner  provided  in  §  318." 


42  ABBOTTS'  PRACTICE  REPORTS. 

Morgan  v.  Morgan. 

Without  stopping  to  inquire  whether  the  right  to  costs  is  ab- 
solute, or  whether  it  rests  in  the  discretion  of  the  Court,  it  is 
quite  clear  that  it  was  not  the  intention  to  give  the  costs 
allowed  by  §  307  to  the  successful  party  on  an  appeal  in  an  ac- 
tion in  the  Supreme  Court. 

If  it  had  been  the  intention  to  give  such  costs,  it  was  only  ne- 
cessary to  provide  that  the  appeal  from  the  decision  of  a  surro- 
gate should  be  deemed  to  be  an  appeal  in  an  action,  or  to  de- 
clare that  the  successful  party  should  recover  the  costs  prescribed 
in  §  307.  So  far  from  this,  such  appeals  are  put  on  the  same 
footing  of  appeals  from  orders  in  special  proceedings,  and  it  is 
quite  certain  that  it  was  never  the  intention  to  give  on  such  ap- 
peals the  costs  given  by  §  307  on  appeals  in  actions  in  the  Su- 
preme Court. 

The  costs  given  by  that  section  would,  in  many  cases  of  ap- 
peals in  special  proceedings,  be  more  than  the  whole  value  of 
the  subject  matter  of  the  litigation.  By  prescribing  a  measure 
of  costs  which  may  be  recovered  in  these  proceedings,  the  legis- 
lature has  manifestly  excluded  every  other  measure.  That  mea- 
sure is  one  which  is  clearly  defined,  and  of  easy  application. 

The  section  declares  that  for  the  purposes  of  costs,  such  pro- 
ceedings and  appeals  shall  be  deemed  actions  at  issue  on  a  ques- 
tion of  law  from  the  time  the  same  shall  be  brought  into  the 
Supreme  Court.  Unless  these  words  were  intended  to  give  the 
costs  in  such  an  issue  in  the  cases  enumerated,  they  are  wholly 
unnecessary.  If  the  intention  was  to  give  the  costs  provided  for 
by  §  307,  it  was  not  necessary  to  allude  to  the  nature  of  the  is- 
sue. The  sense  was  only  rendered  obscure  by  such  a  reference. 

I  am  therefore  constrained  to  hold  that  the  attorney  for  the 
guardian  can  only  recover  the  costs  given  by  the  Code  in  an  ac- 
tion in  which  there  is  an  issue  of  law. 

The  counsel  for  the  guardian  insists  that  the  reference  in 
§  318  to  an  issue  of  law,  is  made  to  indicate  that  the  questions 
thereafter  to  be  mooted  are  questions  of  law  and  not  of  fact. 
But  it  seems  to  me  that  this  mode  of  conducting  the  proceedings 
after  the  appeal  to  the  Supreme  Court  prescribed  by  Rule  44, 
contemplates  a  review  of  the  disputed  items  of  an  account  as 
well  on  the  facts  as  the  law.  And  in  practice  the  contest  on  the 
appeal  is  more  frequently  in  regard  to  the  correctness  of  the 
finding  of  the  surrogate  on  the  facts,  than  on  his  mistakes  in  ap- 
plying the  law. 


NEW  SEKIES;  YOL.  I  43 

Gray  v,  Hannah. 

I  have  not  considered  the  question  whether  the  counsel  for  the 
guardian  is  or  not  entitled  to  the  costs  given  in  actions  where 
there  has  been  a  demurrer  interposed,  as  no  such  question  was 
presented  to  the  taxing  officer.  The  question  is  one  worthy  of 
consideration. 

I  must  affirm  the  taxation,  but  without  costs,  as  the  question 
is,  so  far  as  I  can  find,  entirely  new. 


GKAT  against  HANNAH. 

Supreme  Court,  Eighth  District ;  General  Term,  Jan.,  1866. 
COSTS  ON  APPEAL  FROM  JUSTICE'S  COURT. — NOTICE  or  APPEAL. 

Under  Section  371  of  the  Code  of  Procedure,  if  a  party  appealing  from  a 
justice's  judgment  would  entitle  himself  to  costs,  his  notice  of  appeal  must 
specify  in  plain  and  explicit  language  what  the  error  or  mistake  of  the 
justice  really  was. 

If  the  judgment  was  a  recovery  upon  a  single  cause  of  action  for  unliquidated 
damages,  a  notice  merely  stating  that  the  judgment  should  not  have  been 
for  a  sum  exceeding  a  specified  smaller  amount,  without  pointing  out  any 
element  in  the  damages  that  was  erroneous,  is  not  sufficient  to  entitle  the 
appellant  to  costs. 

Appeal  from  an  order  of  a  county  court. 

This  action  was  brought  in  a  Justice's  Court,  by  David  Gray, 
against  Alexander  Hannah.  The  material  facts  are  stated  in 
the  opinion  of  the  court. 

H.  H.  Woodward,  for  the  appellant. 
J.  H.  McDonald,  for  the  respondent. 

BY  THE  COURT.* — E.  DARWIN  SMITH,  J. — The  plaintiff  sued  the 
defendant  in  a  justice  court  in  trespass,  for  damages  done  by 
the  defendant's  dog  in  killing  his  sheep,  and  recovered  a  ver- 
dict for  eighty-six  dollars,  damages.  The  defendant  appealed 

*  Present  T.  A.  JOHNSON,  J.  C.  SMITH  and  E.  D.  SMITH,  JJ. 


44  ABBOTTS'  PRACTICE  REPORTS. 

Gray  v.  Hannah. 

to  the  County  Court,  where  the  cause  was  retried  and  the  de- 
fendant succeeded  in  reducing  the  plaintiff's  recovery  to  eighty 
dollars,  for  which  the  plaintiff  had  a  verdict  in  the  County 
Court.  The  defendant  claimed  costs  upon  the  appeal  and  the 
County  Court  decided  that  he  was  entitled  to  recover  costs, 
and  directed  that  they  be  adjusted  and  applied  upon  the  judg. 
ment.  From  this  order  the  plaintiff  appeals. 

The  question  for  us  is  whether  the  statute  regulating  costs 
upon  appeals  from  Justices'  Courts  require  such  a  construction 
as  shall  cast  upon  a  plaintiff  who  has  a  good  cause  of  action, 
the  whole  costs  of  a  litigation  because  one  jury  differed  from 
another  hi  respect  to  the  extent  of  his  damages  to  the  amount 
of  six  dollars,  and  he  had  sought  to  save  expense  by  sueing  in  a 
justice's  court,  when  if  he  had  sued  in  this  court  he  would  have 
recovered  full  costs. 

The  order  of  the  county  court  was  based  upon  the  provision 
of  section  371  of  the  Code,  giving  costs  to  the  appellant  when 
the  judgment  in  the  county  court  is  more  favorable  to  the  ap- 
pellant than  the  judgment  in  the  court  below,  in  certain  cases. 

The  notice  of  appeal  in  the  case  contains  six  specifications 
alleging  error  in  the  Justice  Court,  four  of  which  relate  to  the 
merits  and  to  the  proceedings  on  the  trial.  The  fifth  was  "  that 
the  judgment  should  have  been  for  the  defendant,"  and  the 
sixth,  "  that  the  judgment  should  not  have  been  for  a  sum  ex- 
ceeding thirty-five  dollars,  with  costs,  and  the  defendant  there- 
fore offers  to  allow  such  judgment  to  be  corrected  accord- 
ingly." The  omission  of  plaintiff  to  offer  to  amend  the  judg- 
ment by  reducing  it  to  thirty-five  dollars,  or  to  make  any  offer 
to  reduce  the  amount  of  damages  recovered,  is  the  basis  of,  and 
reason  for,  the  order  giving  the  appellant  costs  of  the  appeal. 

The  learned  County  Judge  is  not  without  considerable  au- 
thority in  this  court  for  his  decision.  The  cases  of  Fox  v.  Nel- 
lis,  25  How.  Pr.,  144,  and  Loomis  v.  Higbie,  29  How.  Pr.,  232, 
fully  I  think  sustain  the  decision,  and  perhaps  some  other  cases. 

Section  371  of  the  Code  requires  the  party  appealing  from  a 
judgment  of  a  Justice  of  the  Peace  to  the  County  Court,  to 
state  in  his  notice  of  appeal  "  in  what  particular  or  particulars, 
he  claims  the  judgment  should  have  been  more  favorable  to 
him,"  and  provides  that  within  15  days  after  the  service  of  the 
notice  of  appeal  the  respondent  may  serve  upon  the  appellant 
an  offer  in  writing  to  allow  the  judgment  to  be  corrected  in  any 


M      HEW  SERIES  ;  VOL  I.  45 

Gray  v,  Hannah. 

of  the  particulars  mentioned  in  the  notice  of  appeal,  and  that 
the  appellant,  within  five  days  thereafter,  may  accept  such  of- 
fer, &c.  And  it  is  further  provided  that  if  such  offer  is  not 
made  and  the  judgment  in  the  appellate  court  be  more  favora- 
ble to  the  appellant  than  the  judgment  in  the  court  below, 
then  he  shall  recover  costs. 

The  plaintiff  in  this  case  made  no  offer,  and  he  is  clearly  lia- 
ble for  costs,  and  the  order  of  the  County  Court  clearly  right,  if 
the  appellant  has  imposed  such  duty  upon  him  at  the  peril  of 
paying  costs,  if  the  judgment  on  the  appeal,  as  it  is,  be  more 
favorable  to  the  appellant  in  the  County  Court.  The  duty  of 
the  plaintiff  in  such  case,  if  he  would  escape  such  liability  for 
costs,  depends  upon  the  question  whether  the  appellant  has  in 
his  notice  of  appeal  stated  any  particular  in  which  he  claims 
that  the  judgment  should  have  been  more  favorable  to  him.  Of 
the  two  specifications  made  as  above  set  forth,  the  first  is  clearly 
no  such  particular,  within  any  of  the  cases.  It  is  simply  an  as- 
sertion, in  effect,  that  the  entire  judgment  is  erroneous.  The 
second  specification,  "  that  the  judgment  should  have  been  for 
a  sum  not  exceeding  thirty-five  dollars,  with  costs,"  is  the  only 
specification  relied  on  by  counsel  to  sustain  the  order  of  the 
County  Court,  and  is  the  one  upon  which  it  was  based  by  the 
county  Judge. 

I  do  not  think  this  is  a  statement  of  any  particular  in  which 
the  judgment  should  have  been  more  favorable  to  the  appel- 
lant, within  the  true  intent  and  meaning  of  the  term  as  used  in 
section  371. 

The  object  and  meaning  of  this  section,  and  the  evil  it  was 
intended  to  obviate,  are  well  stated  by  Judge  Campbell  in 
"Wyukoop  v.  Holbert,  25  How.  Pr.,  158,  and  by  Judge  Daniels 
in  Forsyth  v.  Ferguson,  27  Id.,  67. 

Judge  Campbell  says  that  formerly,  "judgments  were  en- 
tirely reversed  for  errors,  which  it  was  manifest  affected  only 
parts  or  portions  of  such  judgments,"  and  says  this  statute  ena- 
bles a  party  aggrieved  to  "  point  out  any  particular  which  he 
claims  to  be  error."  And  Judge  Daniels  well  says  the  appel- 
lant "  must  specify,  separate  or  distinguish  in  a  tangible  form 
so  that  the  respondent  may  comprehend  the  precise  change  in 
the  judgment  to  which  he  is  willing  to  consent.  Terms  of  a 
general  nature  are  not  sufficient." 

I  think  this  is  a  true  exposition  of  the  section. 


46  ABBOTTS'  PRACTICE  REPORTS. 

Gray  v.  Hannah. 

Unless  such  a  specification  is  made  by  the  appellant  the 
plaintiff  is  not  bound  to  make  any  offer.  The  statement  in  this 
case  that  the  judgment  should  not  have  exceeded  thirty-five 
dollars,  does  not  specify,  point  out,  or  distinguish  any  particu- 
lar error.  It  does  not  show  why  that  sum  is  named  in  prefer- 
ence to  any  other  sum  from  one  dollar  up  to  eighty.  It  does 
not  point  to  any  element  in  the  damages  that  is  erroneous,  any 
principle  adopted  in  estimating  damages  that  was  mistaken, 
and  involved  the  error  of  all  the  judgment  above  thirty-five 
dollars.  It  does  not  show  that  any  mistake  of  calculation  was 
made,  any  erroneous  item  allowed — or  any  one  or  more  error  of 
fact — or  misapplication  of  law  or  misconstruction  of  the  evi- 
dence led  to  the  excess  over  thirty  five  dollars.  The  action  is 
trespass  for  destroying  plaintiff's  sheep.  The  statement  does 
not  show  any  error  or  claim  any  mistake  in  respect  to  the  num- 
ber of  sheep  destroyed,  any  error  in  the  valuation  of  the  sheep 
or  any  of  them,  explanatory  of  the  excess  in  the  judgment  over 
thirty-five  dollars.  If  the  judgment  had  been  recovered  upon 
several  items  of  an  account  or  claim  of  any  nature — as  for  sev- 
eral promissory  notes — or  several  distinct  trespasses — the  spe- 
cification in  the  notice  of  appeal  should  state  which  of  the  sev- 
eral claims  allowed  or  embraced  in  the  judgment  was  or  was 
not  claimed  to  be  erroneous.  The  intent  of  the  statute  is  that 
the  appellant  shall  in  his  notice  of  appeal  show  distinctly  what 
the  error  or  mistake  of  the  Justice  in  his  decision  really  was, 
in  language  plain  and  explicit.  To  interpret  this  statute  so  as 
to  allow  such  general  statements  of  alleged  errors  in  judgments 
as  in  this  case,  to  be  sufficient  to  call  upon  the  respondent  to 
make  an  offer  to  :imend  such  judgment  at  the  peril  of  costs  for 
his  omission  to  do  so,  tends,  it  seems  to  me,  to  defeat  rather 
than  subserve  the  salutary  object  of  the  legislature  in  its  pas- 
sage. 

This  is  well  illustrated  by  Judge  Balcom  in  Loomis  v.  Higbie, 
(supra)  where  he  shows  if  such  general  statements  of  the  partic- 
ulars in  which  the  appellant  claims  the  judgment  to  be  excessive 
are  allowed  to  satisfy  the  statute,  a  party  against  whom  a  judg- 
ment is  recovered  in  a  Justice  Court  for  one  hundred  and  fifty 
dollars,  as  in  that  case,  has  only  to  say  in  his  notice  of  appeal 
that  the  judgment  was  for  one  hundred  and  forty-nine  dollars 
too  much,  or  that  it  should  have  been  for  one  hundred  and  forty- 
nine  less,  to  cast  upon  the  opposite  party  the  risk  of  the  whole 


NEW  SEKIES  ;  VOL.  I.  47 

Gray  v.  Hannah. 

litigation,  unless  lie  stipulate  at  once  to  remit  all  his  judgment 
except  the  one  dollar.  In  that  case  the  specification  which  was 
held  sufficient  to  impose  upon  the  plaintiff  the  duty  to  make 
an  offer,  notwithstanding  its  absurdity  was  so  well  exposed, 
and  was  in  these  words — "  the  judgment  should  have  been  for 
a  less  amount  of  damages  against  the  defendant."  It  seems  to 
me,  with  all  due  deference  to  brother  Balcom,  that  that  is  not 
the  statement  of  any  particular  in  which  the  judgment  in  that 
case  was  erroneous,  within  any  fair  and  just  construction  of 
this  statute. 

It  is  about  as  general  and  vague  a  statement  of  error  as 
could  be  made.  It  points  to  no  element  or  ground  of  error  in 
assessing  damage.  It  shows  no  reason  or  ground  for  the  state- 
ment that  the  judgment  should  have  been  for  a  less  sum.  It 
states  no  fact,  refers  to  no  item  of  claim,  or  of  account,  going 
back  of  the  judgment  itself.  It  simply  assails  the  whole  judg- 
ment. It  scarcely  could  have  been  more  vague,  general  or  un- 
certain, if  it  had  simply  said  the  judgment  was  wrong  and 
should  have  been  for  the  defendant ;  it  does  not  impliedly  ad- 
mit that  that  plaintiff  should  recover  any  sum  above  nominal 
damages. 

The  case  of  Fox-y.  ISTellis  (25  How.  Pr.,  144),  is  I  think  equal- 
ly mistaken.  The  judgment  in  that  case  before  the  Justice  was 
for  $159.50.  The  specification  in  the  notice  of  appeal  which 
was  held  good  was  in  these  words.  "  The  judgment  at  most 
should  not  have  been  for  more  than  $5."  Upon  such  a  notice 
the  plaintiff,  who  recovered  $130  in  the  County  Court,  was 
held  bound  to  pay  costs  to  the  appellant. 

It  seems  to  me  that  this  notice  did  not  comply  with  the 
statute.  It  did  not  state  any  particular  in  which  the  judgment 
was  erroneous.  It  stated  no  reason  or  ground  for  the  allegation 
that  the  judgment  should  be  only  five  dollars.  It  specified  no 
error  in  making  up  the  judgment.  It  pointed  out  no  mistake  or 
misconception  by  the  Justice  in  law  or  fact  leading  to  the  pre- 
tended error  of  the  Justice  of  $154.50. 

It  seems  to  me  that  the  Court  should  hold  that  it  will  not  de- 
prive a  successful  party  of  his  costs  upon  any  notice  or  specifi- 
tion  of  error  so  vague,  so  inexplicit,  as  that  in  either  of  these 
cases. 

Such  an  interpretation  of  the  statute  we  cannot  but  see  does 
great  injustice.  A  party  who  seeks  to  throw  upon  his  adversary 


48  ABBOTTS'  PRACTICE  REPORTS. 

Soule  v.  Chase. 

the  hazard  of  further  litigation  should  take  his  ground  and  put 
the  opposite  party  upon  his  guard,  in  clear,  explicit  and  not 
doubtful  language,  in  his  notice  of  appeal.  He  should  point  out 
clearly  the  error  he  complains  of,  so  that  his  adversary  may 
know  what  precise  part  of  the  claim  is  particularly  disputed 
and  will  be  contested  upon  the  appeal.  I  think  the  order  of 
the  County  Judge  in  this  case  should  be  reversed,  and  the  de- 
fendant's motion  for  costs  should  be  denied,  with  $10  costs  of 
appeal. 

Order  accordingly. 


SOULE  against  CHASE. 

New  York  Superior  Court;   General  Term,  November,  1863 

PROCEEDINGS  IN  INSOLVENCY. — -JURISDICTION. — PROOF  OF  SERVICE 
BY  PUBLICATION. — AFFIDAVIT. — EFFECT  OF  DISCHARGE. 

In  proceedings  for  the  discharge  of  an  insolvent  from  his  debts,  under  2 
Rev.  Stat,  35,  the  omission  of  a  petitioning  creditor  to  relinquish  a  secur- 
ity held  by  him,  does  not  affect  the  jurisdiction  of  the  officer,  nor  avoid  the 
discharge,  even  though  his  petition  disclosed  the  existence  of  such  security. 

Nor  is  the  proof  of  publication  of  notice  of  the  order  to  creditors  to  bhow 
cause,  essential  to  give  jurisdiction.  A  discharge  which  recites  due  pub- 
lication and  that  due  proof  thereof  was  presented,  is  not  invalidated  by 
defects  in  the  notice,  in  its  publication,  or  in  the  proof  thereof,  on  file. 

The  statute  does  not  require  publication  for  a  certain  length  of  time,  but  ten 
publications,  each  within  so  many  successive  weeks,  the  commencement 
of  which  is  determined  by  the  first  publication. 

Proof  that  a  notice  was  "  published  in  the  New  York  Day  Book  "  is  sufficient 
to  show  compliance  with  an  order  that  it  be  published  in  "the  newspaper 
published  in  the  city  of  New  York,  entitled  'the  Evening  Day  Book,  '  in 
the  absence  of  any  evidence  of  the  existence  of  two  papers  with  the  title 
of  Day  Book. 

An  affidavit,  in  the  commencement  of  which  the  deponent  is  designated  by 
,  is  not  void  for  not  bein^  subscribed  by  him. 


NEW  SERIES;  VOL.   I.  49 


Soule  v.  Chase. 


The  published  notice  of  an  order  to  creditors  to  show  cause,  stating  that  the 
proceeding  is  for  the  discharge  of  an  insolvent  from  his  dehts,  need  not 
specify  the  particular  statute  under  which  it  is  had,  and  adding  a  defective 
reference  to  the  statute  does  not  vitiate. 

The  proof  of  publication  of  such  notice  is  not  limited  by  the  statute,  to  an 
affidavit  of  the  printer  or  the  clerk  or  foreman  of  the  printer,  although  it 
enables  the  insolvent  to  perpetuate  the  evidence  by  taking  their  affidavit, 

The  petitions  and  schedules  need  not  state  the  grounds  of  the  demands 

/  of  creditors  with  such  particularity  as  is  required  in  a  statement  for  judg- 
ment by  confession ;  and  it  seems  that  want  of  sufficient  particularity  does 
not  affect  the  jurisdiction  of  the  officer. 

Where  a  discharge  recites  all  the  required  jurisdictional  facfs  and  proceed- 
ings, the  county  clerk's  certificate  that  certain  papers,  technically  insuffi- 
cient to  show  jurisdiction,  are  all  that  have  been  filed  with  him  in  the 
proceeding,  is  not,  of  itself,  sufficient  to  disprove  the  recitals. 

Whether  a  name  in  the  list  of  creditors  variant  from  that  of  the  plaintiffs' 
was  intended  to  designate  them ;  or  whether  their  names  were  omitted, 
and  if  so,  whether  the  omission  was  fraudulent ; — Held,  in  this  case  prop- 
erly submitted  to  the  jury. 

An  insolvent's  discharge,  granted  under  the  laws  of  this  State,  is  a  good  do- 
fence  to  an  action  on  a  judgment  recovered  here,  in  the  absence  of  any 
evidence  as  to  where  the  contract  was  made  on  which  the  judgment  was 
recovered.  Evidence  that  the  creditor  was  a  non-resident  is  not  material. 

Appeal  from  an  order  denying  a  motion  for  a  new  trial,  and 
also  from  a  judgment  entered  on  the  verdict. 

The  action  was  brought  by  Harvey  M.,  and  George  H.  Soule 
against  Thomas  B.  Chase,  on  a  judgment  for  two  hundred  and 
twenty-four  dollars  and  ninteen  cents,  which  the  plaintiffs  had 
recovered  against  the  defendant  in  May,  1855. 

The  defendant  in  his  answer  set  up  an  insolvent's  discharge 
from  his  debts,  granted  to  him  since  that  date,  and  alleged  that 
he  was,  at  the  time  of  the  recovery  of  the  judgment,  a  resident 
of  the  State  of  New  York. 

The  cause  was  tried  on  the  4th  day  of  June,  1863,  before  Mr. 
Justice  MONCRIEF,  and  a  jury. 

The  defendant,  in  support  of  his  answer,  gave  in  evidence  his 
discharge,  and  the  proceedings  on  which  it  was  granted  by  the 
County  Judge  of  Kings  County.  The  discharge  was  in  the 
usual  form.  It  contained  the  following  recitals  : 

"  Whereas,  Thomas  B.  Chase,  of  the  Gty  of  Brooklyn,  an  in- 
solvent debtor,  residing  within  the  said  city,  did,  in  conjunction 
with  so  many  of  his  creditors,  residing  within  the  United  States, 
as  have  debts  in  good  faith  owing  to  them  by  the  said  insolvent, 
amounting  to  at  least  two-thirds  of  all  the  debts  owing  by  him 
1ST.  S.— VOL.  L— 4. 


50  ABBOTTS'  PRACTICE  REPORTS. 

Soule  v.  Chase. 

to  creditors  residing  within  the  United  States,  present  a  peti- 
tion to  me,  praying  that  the  estate  of  the  said  insolvent  might  be  as- 
signed for  the  benefit  of  his  creditors,  and  he  be  discharged  from 
his  debts,  pursuant  to  the  provisions  of  a  statute  authorizing  an 
insolvent  debtor  to  be  discharged  from  his  debts;  whereupon 
I  ordered  notice  to  be  given  to  all  the  creditors  of  the  said  insolvent 
to  show  cause,  if  any  they  had,  before  me,  at  a  certain  time  and 
place,  why  an  assignment  of  the  said  insolvent's  estate  should  not  be 
made,  and  he  be  discharged  from  his  debts,  proof  of  the  publi- 
cation whereof  hath  been  duly  made.  And  whereas,  it  satisfac- 
torily appears  to  me  that  the  doings  on  the  part  of  the  creditors 
are  just  and  fair,  and  that  the  said  insolvent  has  conformed  in 
all  things  to  those  matters  required  of  him  by  the  said  statute,  I 
directed,"  &c.,  &c. 

The  affidavits  of  several  of  the  petitioning  creditors,  upon 
which  the  application  for  the  discharge  was  made,  averred,  re- 
spectively, that  the  sum  claimed  was  justly  due  to  the  defend- 
ant "  from  the  said  insolvent,  for  goods,  wares,  and  merchandise 
sold  and  delivered,  and  secured  by  endorsement  of  promissory 
note  of  C.  W.  Smith,  now  due  and  payable ;  and  that  neither  he, 
nor  any  person  to  his  use,  hath  received  from  the  said  insolvent, 
or  any  other  person,  payment  of  any  demand,  or  any  part  there- 
of, in  money,  or  in  any  way  whatever,  or  any  gift  or  reward 
whatsoever,  upon  any  express  or  implied  trust  or  confidence,  that 
he  should  become  a  petitioner  for  the  said  insolvent." 

The  affidavit  of  John  Robinson,  one  of  the  petitioning  credit- 
ors, described  his  demand  as  "  for  goods,  wares  and  merchandise, 
secured  by  indorsement,"  &c.,  continuing  as  above,  but  without 
the  words,  "  sold  and  delivered." 

There  was  no  evidence  in  any  of  the  papers  produced,  of  any 
relinquishment  by  these  creditors  of  the  security  mentioned 
in  their  affidavits. 

C.  "W.  Smith  was  not  mentioned  in  the  schedules  as  a  debtor 
or  creditor  of  the  insolvent. 

The  order  of  the  County  Judge,  requiring  creditors  to  show 
cause  why  an  assignment  of  the  said  insolvent's  estate  should  not 
be  made,  and  he  be  discharged  from  his  debts,  pursuant  to  the 
statute,  directed  notice  of  the  same  "  to  be  published  for  ten  weeks 
in  the  State  paper,  and  in  the  newspaper  printed  in  the  city  of 
New  York,  entitled  the  Evening  Day  Book,  and  the  newspaper 


NEW  SERIES  ;   VOL.  I.  51 

Soule  v.  Chase. 

printed  in  the  city  of  Brooklyn,  entitled  the  Brooklyn  Daily 
Eagk? 

The  notice,  as  published  in  the  State  paper,  was  entitled  and 
commenced  with  a  reference  to  the  statute  under  which  the  pro- 
ceedings were  taken,  as  follows : 

"  Notice  of  application  for  the  discharge  of  an  insolvent  from 
his  debts,  pursuant  to  the  third  article  of  the  first  title  of  the 
fifth  chapter  of  the  second  part  of  the  Revised  Statutes. 

In  the  copy  published  in  the  Brooklyn  Eagle,  the  words  "  of 
the  fifth  chapter,"  were  omitted ;  and  in  that  published  in  the 
Day  jBook,  the  words,  "  of  the  second  part,"  were  omitted. 

The  publication  was  once  in  each  week  for  ten  weeks  successively, 
commencing,  in  the.  State  paper,  on  the  21st  of  May,  1859,  in  the 
Eagle  on  the  20th,  and  iii  the  Day  Book  on  the  28th  of  May. 
The  order  was  returnable  en  the  1st  of  August.  The  affidavit  of 
publication  in  the  Day  Book  was  in  the  following  terms : 

"  G.  C.  Stimson,  of  the  city  of  New  York,  being  duly  sworn, 
says :  That  he  is  a  clerk  in  the  office  of  the  New  York  Day 
Book,  a.  daily  paper  printed  and  published  in  the  city  of  New 
York,  and  that  the  notice,  of  which  the  annexed  is  a  printed  copy, 
has  been  regularly  published  in  the  New  York  Day  Book,  once  a 
week  for  ten  weeks  successively,  commencing  on  the  28th  day 
of  May,  1859." 

Each  of  the  other  affidavits  alleged  the  deponent  to  be  "  fore- 
man in  the  office  "  of  the  paper  designated,  but  did  not  state  that 
he  was  foreman  of  the  printer.  The  affidavit  of  publication  in 
the  State  paper  contained  the  deponent's  name  in  the  commence- 
ment, as  is  usual,  but  was  without  signature.  It  was,  however, 
certified  by  a  commissioner  of  deeds  with  the  usual  jurat. 

In  the  debtor's  schedule,  or  account  of  his  creditors,  the  nature 
of  the  debts,  and  the  cause  and  consideration  of  them  were  indi- 
cated only  by  the  following  phrases,  set  opposite  the  creditors' 
names :  * 

Promissory  notes  for  merchandise  sold  and  delivered 

Promissory  notes  for  merchandise  sold,  delivered,  and  a  book  ac't. . . 

Promissory  note  for  merchandise  sold  and  delivered 

Endorsement  on  promissory  note  for  goods,  wares,  and  merchandise, . 
Endorsement  on  note  for  goods  and  merchandise,  and  various  stocks,  . 

Endorsement  on  note  for  goods,  wares,  and  merchandise 

Promissory  note  for  goods  sold  and  delivered 

Book  account  for  merchandise  sold  and  delivered 

Endorsement  on  note  for  goods  sold  and  delivered 


52  ABBOTTS'  PKACTIOE  EEPOETS. 

Soule  f.  Chase. 

The  list  of  creditors  contained  the  name  of  "W.  G.  Soule,  of 
New  York,  as  a  creditor  to  the  amount  of  two  hundred  and  six 
dollars  and  seventy-four  cents,  accrued  at  New  York  on  a  prom- 
issory note  for  merchandise  sold  and  delivered.  In  the  affidavit 
of  personal  service  of  the  order  to  show  cause,  this  creditor  was 
designated  at  "W.  G.  Saurl.  The  plaintiffs  were  not  named,  un- 
less they  were  intended  by  these  names. 

The  papers  produced  in  evidence  with  the  discharge,  as  being 
a  copy  of  the  proceedings  on  which  it  was  granted,  were  certified 
to  by  the  county  clerk  as  having  been  compared  by  him  "  with 
the  original  papers  in  the  matter  of  Thomas  B.  Chase,  an  insol- 
vent debtor,  on  file  in  my  office,  and  that  they  are  the  true  tran- 
scripts thereof,  and  of  the  whole  of  said  original." 

Yarious  objections  to  the  validity  of  the  discharge,  which  \vere 
taken  by  the  plaintiffs,  are  stated  in  the  opinion  of  the  Court. 
The  plaintiffs  also  offered  to  prove  by  a  witness,  that  the  plain- 
tiffs at  the  time  the  debt  was  contracted  by  the  defendant,  were 
both  not  only  non-residents  of  the  State  of  New  York,  but  were 
also  citizens  of  another  State. 

This  was  excluded  by  the  Court,  to  which  ruling  the  plaintiffs 
excepted. 

The  witness,  in  answer  to  the  following  question  : 

"  Did  the  plaintiffs  receive  notice  of  the  defendant's  applica- 
tion to  be  discharged  from  his  debts,  being  the  discharge  offered 
in  evidence?"  testified  as  follows: 

"  They  never  did  ;"  "  I  and  my  partner  have  done  business  in 
the  firm-name  of  H.  &  G.  Soule  for  the  past  sixteen  years,  and 
both  of  us  lived  in  New  Jersey  during  that  time." 

The  Court  refused  the  plaintiffs'  request  that  the  jury  be  in- 
structed to  find  in  their  favor,  and  charged  the  jury,  that  they 
must  determine  whether  the  names  of  the  plaintiffs  in  this  suit 
were  omitted  from  the  proceedings  for  the  discharge,  and  if  so, 
whether  such  omission  was  with  fraudulent  intent.  To  this  the 
plaintiffs  excepted. 

The  jury  rendered  a  verdict  for  the  defendant ;  and  the  plain- 
tiffs' motion  for  a  new  trial  having  been  denied  and  the  judg- 
ment having  been  entered,  they  now  appealed. 

D.  M.  Porter,  for  the  plaintiffs  appellants. — I.  There  is  a  va- 
riance in  the  title  of  the  newspaper  printed  in  New  York,  in 
which  the  Judge  ordered  the  notice  to  be  published.  The  order 


NEW  SEEIES ;  VOL.  I.  53 

Soule  v.  Chase. 

was  for  the  newspaper  entitled  "  The  Evening  Day  Book?  The 
proof  is  of  its  publication  in  "  The  New  York  Day  Book?  and 
was  not  a  compliance  with  the  order.  (Brisbane  v.  Peabody,  3 
How.  Pr.,  109 ;  Hallett  v.  Eighters,  13  Id.,  43.) 

II.  By  the  affidavit  of  G.  0.  Stimpson  of  the  publication  in  the 
New  York  Day  Book,  the  first  publication  was  May  28th,  1859. 
The  affidavit  was  made  July  30th,  1859,  within  the  ninth  week 
after  the  first  publication,  and  by  no  reasoning  could  it  be  held 
to  be  a  publication  for  ten.  weeks  where  the  affidavit  was  made 
within  the  ninth  week,  it  being  made  on  the  sixty-third  day  of 
the  publication,  and  it  gave  the  officer  no  jurisdiction  to  grant 
the  discharge.  It  presents  an  entirely  different  case  than  it 
would  where  the  affidavit  had  been  made  after  the  expiration  of 
the  ninth  week,  but  before  the  tenth  week  had  expired,  but  even 
in  that  case,  the  discharge  would  be  void.  (Demarest  v.  Gray, 
10  Abb.  Pr.,  468;  Small  v,  Wheaton,  2  Id.,  175.  In  the 
matter  of  Underwood,  3  Cow.,  59  ;  Anonymous,  1  Wend.,  90 ; 
Stanton  v.  Ellis,  16  Barb.,  319.) 

Chase's  creditors  were  required  to  appear  before  the  ten  weeks 
could  elapse  before  the  first  publication. 

in.  By  the  omission  in  describing  the  Revised  Statutes,  the 
notice  does  not  designate  whether  the  application  would  be  made 
under  "  the  Two-thirds  act,"  "  the  Non-imprisonment  act,"  "  the 
Stillwell  act,"  or  "  the  Fourteen  Day  act,"  and  is  not  a  notice  of 
defendant's  application  under  the  former. 

IV.  The  affidavits  do  not  show  that  the  notices  were  published 
ten  weeks  under  and  in  pursuance  of  the  Judge's  order.     Hallett 
v.  Righters  and  Salter,  supra.      Nor  do  they  show  that  the  per- 
sons making  them  were  competent,  inasmuch  as  they  do  not 
swear  that  they  are  either  principal  clerks  or  foremen  of  the 
printers.      They  might  be  clerks  or  foremen  in  the  office,   and 
still  not  be  foremen  of  the  printers.     The  person  making  the  affi- 
davit must  be  the  printer,  or  the  clerk  or  foreman  of  the  printer. 
Sec.  7,  3d  Revised  Statutes,  page  686. 

V.  What  purports  to  be  the  affidavit  of  publication  in  the 
State  paper  is  not  an  affidavit,  because  H  is  not  signed  hy  the 
deponent;   the  oath  is  not  binding,  as  no  perjury  could  be 
charged  upon  such  a  paper.     Consequently,  there  is  no  proof  of 
such  publication  to  give  jurisdiction  to  the  Judge  to  entertain 
the  proceedings.     By  the  definition  of  an  affidavit,  it  must  be 
signed.   (Laimbeer  v.  Allen,  2  Sandf.,  647 ;  Graham  v.  McCoun, 


54  ABBOTTS'  PEACTICE  KEPOETS. 

Soule  v.  Chase. 

5  How.  Pr.,  353 ;  also,  see  eases  in  1st  Code  Reporter,  63, 114: ; 
Stanton  v.  Ellis,  supra;  Barker  v.  Cook,  16  Abb.  Pr.,  83.) 

"An  affidavit  is  an  oath  in  writing  signed  by  the  party 
deposing,  sworn  before  and  attested  by  him  who  had  authority 
to  administer  the  same."  Definition  of  an  affidavit  in  Bacon's 
Abridgement,  at  head  of  the  title  "  Affidavits." 

VI.  There  is  a  want  of  proper  specifications  in  the  affidavits 
of  the  petitioning  creditors  as  to  the  nature  of  their  debts,  how 
and  for  what  they  arose,  when  and  where  and  who  were  the 
parties  thereto,  the  consideration  and  character  of  the  indebted- 
ness. 

All  and  each  of  these  should  appear  on  the  papers,  and  with- 
out a  full  and  proper  statement  thereof,  the  intent  to  defraud 
must  be  inferred,  and  becomes  a  question  of  law.  (Slidell  v.  Mc- 
Crea,  1  Wend.,  156 ;  Small  v.  Wheaton,  2  Abb.  Pr.,  175,  179  ; 
MoNair  v.  Gilbert,  3  Wend.,  344 ;  Gillies  v.  Crawford,  2  Hilt., 
338.) 

Sec.  7  (4),  of  3  Revised  Statutes,  page  92  (5th  ed.),  requires 
the  petitioning  creditors  to  state  the  nature  of  the  demand,  with 
the  general  ground  and  consideration  of  such  indebtedness. 
The  next  section  specifies  what  the  petitioner  shall  do.  Unless 
the  specifications  stated  them,  subdivisions  3,  4,  and  5,  of 
section  7,  are  nonsense.  Chase  did  not  comply  with  either  of 
these  subdivisions.  There  was  no  specification  as  required,  nor 
is  there  any  statement  whether  there  was  any  security  for  the 
indebtedness  or  not,  neither  is  Smith  named  as  a  debtor  or  cred- 
itor. 

By  the  affidavit  of  John  Robinson  it  does  not  appear  that  the 
property  was  ever  sold  or  delivered,  nor  is  any  specification  made 
of  any  kind. 

In  the  statement  of  the  debts  it  should  be  made  to  appear  how 
and  for  what  they  arose,  when  and  where,  who  were  the  parties, 
the  consideration  or  the  character  of  the  indebtedness,  who  de- 
livered the  goods  or  merchandise,  and  to  whom  they  were  de- 
livered. 

Such  a  specification  as  was  made  would;  not  support  a  judg- 
ment. (Dunham  v.  Waterman,  6  Abb.  Pr.,  357;  Chappel  v. 
Ghappel,  12  N.  Y.  [2  JK?ra.],  215 ;  Freligh  v.  Brink,  16  How. 
Pr.,  272 ;  Moody  v.  Townsend,  3  Abb.  Pr.,  375  ;  Stebbins  v.  The 
East  Society,  12  How.  Pr.,  410.) 

In  the  case  of  Gandal  v.  Finn  (13  How.  Pr.,  418),  specifica- 
tions were  much  more  particular  and  greater  than  in  these  affi- 


NEW  SERIES;   VOL.  I.  55 

Soule  v.  Chase. 

davits.  How  much  more  full,  precise,  and  particular,  should 
every  statement  be  made,  in  a  case  where  a  party's  just  claim  is 
to  be  swept  away  by  a  judicial  statutory  proceeding. 

It  is  submitted  that  no  confession  of  judgment  has  ever  been 
upheld  where  no  date  or  place  has  been  given.  None  are  given 
in  the  affidavits. 

VII.  The  Court  erred  in  refusing  to  allow  the  plaintiffs  to 
show  that  at  the  time  the  debt  for  which  the  judgment  was  ren- 
dered was  contracted,  they  were  neither  residents  nor  citizens  of 
this  State ;  as  the  insolvent  laws  of  one  State  cannot  impai-r  debts 
contracted  with  the  citizens  of  another  State  at  the  time  of  con- 
tract.     Donnelly  v.  Corbett,  7  N~.  Y.  (3  8eld.\  500.    Analogous 
to  this  case,  is  Ogden  v.  Saunders,  12  Wheat.,  213. 

VIII.  The   discharge  was  void,   inasmuch  as  the   plaintiffs' 
names  were  left  out  of  the  proceedings.     They  were  residents  of 
New  Jersey,  and  no  persons  are  put  in  as  residing  there — nor  do 
their  names  appear :  this  claim  was  for  a  judgment,  and  is  for  a 
different  amount  than  any  claim  named — no  mention  of  any 
judgment  is  made  in  the  schedule,  and  the  discharge  was  void. 
(Subdivision  5  of  Sec.  8,  3d  Revised  Statutes,  page  93  ;  Stanton 
v.  Ellis,  12  JUT.  T.  [2  Kern.'],  575.) 

IX.  The  plaintiffs  had  no  notice  of  the  application  which  was 
required  by  law,  which  rendered  the  discharge  fraudulent,  not 
as  a  question  of  fact  but  of  law.     (Cases  above  cited.) 

X.  There  was  no  schedule  of  the  defendant's  creditors  sworn 
to,  as  required  by  Sec.  8  of  the  Revised  Statutes.      As  the  word 
"  sworn  "  is  left  off,  there  is  no  jurat — and  the  oath  can  only  ~be 
administered  by  the  Judge  granting  the  discharge.      (Small  v. 
Wheaton,  supra.)      The  same  objection  is  taken  to  the  oath  to 
the  schedule  of  the  nature  of  the  indebtedness,  and  where  the 
creditors  resided,  required  by  Sec.  8. 

XI.  This  application  of  the  defendant  was  a  special  statutory 
proceeding,  and  if  any  essential  prerequisite  was  wanting,  the 
discharge  is  a  nullity.     (Small  v.  Wheaton,  2  Abb.  Pr.,  175,  and 
the  cases  there  cited.)      And  the  discharge  being  fraudulent  in 
law,  the  Court  ought  to  have  directed  judgment  for  the  plaintiffs 
on  their  motion.      In  the  matter  of  Underwood,  3  Cow.,  59 ; 
and  see  2  Kern.,  575. 

The  Court  is  now  asked  to  correct  the  error. 
It  is  submitted  that  if  the  discharge  is  held  invalid  for  any 
jurisdictional  defect  in  the  proceedings,  no  possible  state  of  proof 


56  ABBOTTS'  PRACTICE  REPORTS. 

Soule  v.  Chase. 

will  entitle  the  defendant  to  judgment,  and  it  brings  this  case 
within  the  rule  laid  down  in  Edmonston  v.  McLoud  (16  JV.  Y. 
[2  SmitK],  543) ;  and  final  judgment  should  be  given  for  the 
plaintiffs. 

E.  R.  Bogardus,  for  the  defendant,  respondent. 

BY  THE  COURT.* — ROBERTSON,  J. — The  following  objections 
were  made,  on  the  trial,  to  the  validity  of  the  defendant's  insol- 
vent discharge,  founded  solely  upon  what  was  produced  in  evi- 
dence as  the  proceedings  by  which  it  was  obtained. 

1st.  Too  short  a  publication  in  the  New  York  Day  Book,  of 
*  the  notice  to  show  cause  against  such  discharge. 

2d.  Non-publication  of  such  notice  in  any  paper  entitled  the 
Evening  Day  Book,  as  required  by  the  order. 

3d.  "Want  of  proper  specification  in  the  affidavits  of  petition- 
ing creditors  of  "  the  nature  of  their  debts  and  claims,  how  and 
for  what  they  arose,  when  and  where,  who  were  the  parties,  the 
consideration  and  character  of  the  indebtedness,  who  delivered 
the  goods,  wares,  and  merchandise,  or  to  whom  they  were  deliv- 
ered." 

4th.  The  omission  of  the  names  of  the  plaintiffs  in  the  pro- 
ceedings. 

5th.  The  omission  from  the  defendant's  list  of  creditors  of  the 
name  of  C.  W.  Smith,  whose  endorsements  are  alleged  in  the 
affidavits  of  petitioning  creditors  as  securing  their  debts. 

6th.  Like  want  of  specification  of  the  nature  of  the  creditors' 
demands,  in  the  defendant's  statements  of  them,  as  in  their 
affidavits  of  indebtedness. 

7th.  The  absence  of  any  signature  subscribed  to  the  proof  of 
publication  in  the  State  paper. 

To  these  objections  the  plaintiffs'  counsel  now  adds  another, 
of  the  failure  of  the  petitioning  creditor  to  relinquish  to  the  as- 
signee, by  a  statement  at  the  foot  of  their  affidavit,  the  security, 
which  by  such  affidavit  they  appear  to  have. 

Such  of  these  objections  as  do  not  relate  to  jurisdictional  facts 
are  cured  by  the  provisions  of  law  which  make  the  discharge 
conclusive  evidence  of  the  facts  recited  in  it  (2  R.  S.,  38,  §  19), 
and  enumerates  for  what  causes  the  discharge  may  be  set  aside, 
(2  R.  S.,  23,  §  34,  5th  Ed.,  40 .\  Formerly  they  excluded  all  con- 

*  Present  MONCIUEF,  ROBERTSON  and  MONEI.L,  JJ. 


NEW   SEKIES;  VOL.   I.  57 

Soule  v.  Chase. 

test  even  on  jurisdictional  facts  (Lester  v.  Thompson,  1  Johns., 
300  ;  Jenks  v.  Stebbins,  11  Id.,  244;  People  v.  Stryker,  24 
Barft.)  649) ;  but  the  more  recent  case  of  Stanton  v.  Ellis  (12  N. 
Y.  [2  Kem^  576  ;  S.  C.,  16  Barl.,  319)  reduces  the  effect  of  the 
recitals  as  to  jurisdictional  facts  to  mere  prima  facie  evidence. 

What  are  necessary  jurisdictional  facts  are  clearly  and  suc- 
cinctly enumerated  in  the  case  of  Kusher  v.  Sherman  (28  Barb., 
416),  in  which  they  are  stated  by  the  learned  Judge  who  decided 
that  case  to  be — 

1st.  A  proper  petition  by  proper  parties. 

2d.  Proper  affidavits,  by  the  petitioning  creditors,  of  the  na- 
ture, amount  and  consideration  of  their  debts,  and  their  freedom 
from  any  bribe. 

3d.  A  proper  account  of  creditors,  and  the  amounts  due  them, 
the  consideration  of  their  debts,  and  any  security  held  by  them 
therefor. 

4th.  A  proper  inventory. 

5th.  The  oath  of  the  insolvent,  ~before  the  officer,  as  to  the  ac- 
curacy of  his  petition  and  schedule,  and  other  matters  required 
by  the  statute. 

6th.  Proof  of  residence. 

I  cannot  regard  the  relinquishment  by  the  petitioning  credit- 
or of  any  security  held  by  him  before  he  became  a  petitioning 
creditor,  as  a  jurisdictional  fact  (2  R.  S.,  36,  §  21).  The  statute 
provides  no  mode  of  informing  the  officer  of  their  existence,  ex 
cept  by  the  statement  in  the  petition  or  schedule  annexed.  In 
this  case  the  statement  of  it  in  the  creditor's  affidavit  was  super- 
fluous, because  not  required  by  the  statute.  The  statute  did  not 
intend  that  the  whole  proceedings  should  be  had  for  nought  if  it 
should  afterwards  be  accidentally  discovered  that  the  petitioning 
creditor  held  a  security  which  he  had  omitted  to  relinquish.  It 
might  form  a  good  objection  to  granting  the  discharge  on  the 
hearing,  and  possibly  might  be  cured  by  relinquishment  even  at 
that  time. 

The  provision  in  regard  to  such  relinquishment  forms  no  part 
of  the  article  prescribing  the  proceedings  to  be  had  before  pro- 
curing the  order  for  publication  of  the  notice  to  show  cause,  and 
is  only  directory  in  form.  Moreover ,  in  this  case,  no  mention 
is  made  of  any  securities  held  by  the  petitioning  creditors  in  the 
insolvent's  schedule  of  debts,  and  although  proof  may  be  now 


58  ABBOTTS'  PRACTICE  REPORTS. 

Soule  -v.  Chase. 

offered  aliunde  of  the  existence  of  sucli  securities,  such  omission 
will  not  affect  the  validity  of  the  discharge  (Stanton  v.  Ellis,  12 
N.  Y.  [2  Ifern.~],  575,  per  DENIO,  J.)  The  accidental  statement  in 
the  affidavits  of  petitioning  creditors  in  this  case,  that  their 
claim  is  secured  by  said  endorsement,  did  not  make  it  incum- 
bent on  the  officer  to  see  that  it  was  given  up.  The  statute  only 
required  that  the  documents  mentioned  in  the  case  of  Rusher  v. 
Sherman  (ulA  sup.}  as  jurisdictional,  shall  be  presented  to  the  of- 
ficer to  procure  the  order  for  publication,  and  upon  such  presen- 
tation and  order  he  acquires  jurisdiction. 

The  proof  of  publication  required  by  the  statute  is  not  a  juris- 
dictional fact ;  the  decision  of  the  Supreme  Court  in  Stanton  v. 
Ellis  (ubi  sup.}  to  that  effect  is'doubted  by  the  Judge  who  gave 
the  only  opinion  in  the  same  case  on  appeal  (12  N.  Y.,  580, 
DENIO,  J.)  He  says  he  "  suspects  it  is  not ;"  thus  giving  as  strong 
an  impression  as  possible,  considering  that  the  point  was  not  ne- 
cessary to  the  case.  He  intimates  very  strongly  in  that  case 
that  jurisdiction  begins  on  granting  the  order  before  the  publi- 
cation is  made.  The  statute  merely  directs  proof  to  be  made  be- 
fore inquiring  into  the  merits  ;  while  the  amendment  in  1847  as 
to  one  mode  of  service  which  prescribes  that  the  proof  shall  be 
satisfactory  to  the  officer  (Sess.  Laws  of  1847,  Ch.  366,  §  2),  nei- 
ther states  whether  it  shall  be  made  by  affidavit  or  orally. 
There  was  no  evidence  in  this  case  that  the  affidavits  offered 
were  the  only  proofs  of  publication  received  by  the  officer ;  and 
the  recitals  in  the  discharge  are  at  least  prima  facie  evidence  of 
due  proof,  even  if  it  were  a  jurisdictional  fact ;  and  the  same 
principles  will  apply  to  all  the  other  objections  except  the  con- 
tents of  the  papers  presented  to  the  officer.  But  even  if  they 
were  the  only  evidence,  they  are  sufficient. 

The  objection  of  too  short  a  publication  of  the  notice  to  show 
cause  was  properly  overruled,  because  the  statute  only  requires 
ten  publications,  each  one  of  which  is  to  be  successively  within 
one  of  ten  successive  weeks  (2  R.  S.,  18,  §  11,  [14],)  the  com- 
mencement whereof  is  determined  by  the  first  publication  (Shel- 
don v.  Wright,  5  N.  Y.  [1  Sdd.],  497  ;  S.  C.,  7  £arb.,  39  ;  see  1 
Mass.,  255).  A  contrary  doctrine  upheld  in  The  People  v.  Yates 
C.  P.  (1  Wend.,  90),  followed  in  Bunce  v.  Reed  at  Special 
Term  (16  Barb.,  347),  is  overruled  by  the  cases  last  cited.  The 
difference,  when  a  definite  period  of  publication,  such  as  ten 
weeks,  and  not  the  number  of  publications  is  fixed,  was  over- 


NEW  SERIES  ;  VOL.  I.  59 

Soule  v.  Chase. 

looked  in  those  cases.  In  the  statute,  no  length  of  time  is  pre- 
scribed during  which  the  notice  to  show  cause  must  be  given, 
except  by  such  order  of  publication. 

The  question  of  the  name  of  the  newspaper,  The  Day  Book, 
is  entirely  one  of  identity.  The  affidavit  of  publication  com- 
plained of  does  not  aver  the  title  of  the  paper  to  be  the  New 
York  Day  Book,  but  designates  it  by  that  name  as  a  New  York 
newspaper.  In  the  order  of  publication,  the  term  "  Evening  " 
may  have  been  used  merely  to  specify  it  as  an  afternoon  issue. 
There  was  no  evidence  of  the  existence  of  two  papers,  published 
in  the  city  of  New  York,  with  the  title  of  Day  Book,  to  create 
a  patent  ambiguity.  Similar  variances  have  been  held  immate- 
rial even  in  actions  for  torts.  (Southwick  v.  Stevens,  10  Johns  , 
443.)  Extrinsic  circumstances  are  admissible  to  show  who  is 
intended  by  a  certain  name.  (People  v.  Ferguson,  8  Cow.,  102.) 
Even  the  entire  omission  of  the  christened  name  of  a  person  has 
been  held  to  be  immaterial. 

The  want  of  a  signature  subscribed  to  another  affidavit  of 
publication  is  also  immaterial.  In  this  case  the  affiant's  name 
was  at  the  head  of  the  affidavit,  and  that,  in  the  case  of  wills 
and  agreements  under  the  former  Statute  of  Frauds,  was  held  to 
be  a  sufficient  signature. 

The  same  view  was  taken  in  Jackson  v.  Yirgil  (3  Johns.,  539), 
where  a  signature  was  omitted.  The  only  object  of  a  signature 
or  mark  (signum)  is  to  identify  the  deposition  sworn  to.  Per- 
sons incapable  of  making  either  a  signature  or  mark  by  disease 
or  natural  infirmities  or  defects,  are  not  debarred  from  making 
an  affidavit,  which  is  but  written  testimony.  The  description  in 
Bacon's  Abridgment  (Tit.  Affidavits)  of  an  affidavit  will  hardly 
stand  any  critical  examination  as  a  definition.  It  is  there  called 
an  oath  in  writing  administered  /  how  that  can  be  when  the 
form  is  presented  orally,  is  not  very  clear.  The  case  of  Laimbeer 
v.  Allen  (2  Sandf.,  647),  decided  at  Special  Term,  where 
the  question  arose  on  a  pleading  not  an  affidavit,  and  was  hastily 
considered  without  any  notice  of  the  case  of  Jackson  v.  Yirgil 
(ubi  sup.)  can  hardly  be  considered  as  overruling  it. 

There  is  no  statutory  provision  requiring  the  particular  act 
of  the  Legislature  under  which  the  applicant  seeks  relief,  to  be 
designated  in  the  published  notice  to  show  cause.  The  Revised 
Statutes  only  require  him  to  state  therein,  merely  whether  he 
seeks  a  discharge  from  his  debts  or  only  from  imprisonment.  (2 


60  ABBOTTS'  PEACTICE  REPORTS. 

Soule  v.  Chase. 

-R.  8.,  648,  §  44).  The  proof  of  publication  is  not  limited  by 
statute  to  any  particular  person ;  although  it  enables  an  insol- 
vent to  perpetuate  such  evidence  when  made  by  specified 
persons.  The  objections  made  on  the  score  of  an  omission  in 
the  notice  of  the  subdivisions  of  the  Kevised  Statutes  in  which 
the  Two-Third  act  is  to  be  found,  as  well  as  of  the  person  making 
the  affidavit,  therefore,  fall  to  the  ground. 

The  statutory  requisites  that  the  nature  of  the  demands  of  the 
petitioning  creditors,  as  well  as  whether  they  arise  on  a  written 
security  or  otherwise,  and  their  general  grounds  and  considera- 
tion, shall  be  stated  in  their  affidavits,  and  that  their  true  cause 
and  consideration  shall  be  stated  in  the  debtor's  schedule  an- 
nexed to  his  petition,  seem  to  have  been  sufficiently  complied 
with.  If  enough  is  stated  to  apprise  disputing  or  opposing 
creditors  of  the  general  grounds  of  indebtedness,  such  as  money 
lent,  money  paid,  or  services  at  the  debtor's  request,  it  has  been 
held  to  be  sufficient,  because  it  gives  them  a  clue  to  inquiry 
(Taylor  v.  Williams,  20  Johns.,  21).  Defects  in  such  statements, 
arising  from  want  of  particularity,  have  been  held  to  be  cured 
by  the  discharge,  and  even  to  be  curable  at  the  hearing  (In 
matter  of  Hurst,  7  Wend.,  239).  Want  of  particularity  differs 
from  an  entire  omission  of  the  consideration  (McNair  ?;.  Gilbert, 
3  Wend.,  344).  It  was  not  necessary  to  specify  to  whom  the 
goods  were  sold  and  delivered,  or  when,  with  the  particularity 
required  in  a  complaint,  or  even  in  the  specification  required  by 
the  Code  of  Procedure  to  be  annexed  to  a  confession  of  judg- 
ment (§  383).  That  exacts  a  concise  statement  of  "  the  facts 
out  of  which  the  liability  "  arises,  which  is  far  more  extensive 
than  "  the  nature  of  the  demand  and  ground  and  consideration 
of  the  indebtedness."  None  of  the  conflicting  decisions  in 
regard  to  that  section  of  the  Code  would  therefore  be  applicable. 
The  subsequent  provision  in  the  Statute  authorizing  the  officer 
to  whom  the  application  is  made,  to  commence  his  acts  for 
granting  the  discharge  by  directing  an  assignment  upon  being 
satisfied  of  the  appearance  of  certain  matters  (2  R.  S.,  21,  §  25), 
would  alone  throw  great  doubt  on  the  question  whether  the 
proper  description  of  the  indebtedness  of  the  insolvent  to 
petitioning  creditors,  which  is  not  one  of  those  matters,  was  a 
jurisdictional  fact.  That  provision  only  requires  the  officer  to 
be  satisfied  of  the  insolvent's  indebtedness  to  the  creditors  for 
the  amount  claimed,  without  reference  to  its  origin  or  nature. 


NEW  SERIES;  VOL.  I.  61 


Soule  v.  Chase. 


A  mistake  in  anything  but  the  amount  would  seem  to  be  capa- 
ble of  being  overlooked.  On  the  fact  of  the  indebtedness  and 
its  being  two-thirds,  the  discharge  seems  to  be  conclusive  (Betts 
v.  Bagley,  12  Peck,  872).  The  language  of  Judge  DENIO,  in 
Van  Alstyne  v.  Erwine  (11  N.  Y.  [I  Kern.'],  331),  in  reference  to 
another,  and  of  special  proceeding  quoted  with  approbation  by 
the  learned  Judge  who  delivered  the  opinion  in  Rusher  v.  Sher- 
man (ubi  sup.),  is  still  more  apt  in  regard  to  insolvent  dis- 
charges, for  without  "  the  liberal  indulgence "  challenged  by 
him  "  even  on  questions  of  jurisdiction,"  proceedings  to  obtain 
them  would  be  "  a  snare  instead  of  a  beneficial  remedy." 

But  most  if  not  all  of  these  objections  are  technical  and 
founded  on  the  supposition  that  the  recitals  in  the  discharge  are 
contradicted  by  the  sole  want  of  conformity  of  certain  documents 
produced  from  the  County  Clerk's  office  to  the  provisions  of 
Statute.  There  was  no  evidence  obtained  to  show  that  the 
officer  granting  the  discharge  had  not  other  evidence  before  him 
of  the  facts  recited  in  the  discharge  than  appeared  in  the  papers 
so  produced.  The  County  Clerk  certified  that  he  had  compared 
the  latter  with  "the  original  papers,  in  the  matter  of  Thomas 
B.  Chase  on  file  in  his  office"  and  that  they  were  true  transcripts 
of  the  whole  of  them.  He  probably  knew  nothing  -of  such 
original  papers  except  they  were  on  file  in  his  office  :  by  whom 
filed,  or  when,  did  not  appear.  The  case  states  that  they  were  a 
copy  of  the  proceedings  and  discharge.  They  consisted  of  what 
purported  to  be  copies  of  a  discharge ;  assignment ;  some  affidavits 
of  publication  and  personal  service  of  notice  on  creditors ;  an 
order  for  an  assignment;  a  certificate  of  its  execution  by  the 
assignee  and  of  its  record  by  a  County  Clerk ;  an  order  of  pub- 
lication of  notice ;  a  petition  by  the  defendant  and  some  creditors, 
and  an  affidavit  of  his  good  faith ;  some  affidavits  of  such  cred- 
itors ;  a  list  of  them  and  their  residences ;  a  schedule  of  the 
nature  of  their  debts ;  and  an  inventory  of  the  insolvent's  estate. 
These  undoubtedly  were  a  compliance  with  some  of  the  provis- 
ions of  the  statute,  but  are  not  proved  to  include  every  thing 
that  took  place  before  the  officer.  He  is  required  to  file  "  all 
proceedings  "  to  obtain  a  discharge,  within  a  certain  time  after 
the  same  shall  have  been  consummated,  with  the  Clerk  of  his 
County  (2  R.  8.,  39,  §  27).  What  is  meant  by  "proceedings  " 
does  not  clearly  appear  from  such  provision,  whether  they 
include  those  required,  to  be  reported  by  such  an  officer  to 


62  ABBOTTS'  PRACTICE  REPORTS. 

Soule  v.  Chase. 

another  Court  (2  R.  &,  10,  §46 ;  lb.,  13,  §  68),  those  for  obtaining 
a  jury  (2  7?.  /£,  26,  §  14 ;  /&.,  29,  §  6),  or  the  minutes  required  to 
be  kept  by  such  officer  of  the  testimony  of  witnesses  examined 
before  him  (2  R.  IS.,  37,  §  16),  which  might  include  proof  of  due 
publication  of  the  notice  to  show  cause, — does  not  appear.  In 
some  parts  of  the  title  containing  the  statute  in  question,  the 
term  "  proceedings "  is  evidently  used  to  signify  all  the  steps 
taken  to  procure  a  discharge,  according  to  its  proper  meaning. 
Under  such  circumstances  the  prirna  facie  evidence  that  all  the 
jurisdictional  proceedings  and  facts  recited  in  the  discharge 
took  place,  created  by  law  from  such  recital,  is  hardly  repelled 
by  a  County  Clerk's  certificate,  that  certain  documents  are 
copies  of  all  the  original  papers  filed  in  the  matter  of  such  in- 
solvency in  his  office,  without  evidence  to  show  that  the  proper 
proceedings  did  not  tuke  place  before  the  officer  certifying  in 
the  discharge  granted  by  him  that  they  did. 

The  question  of  fraud  growing  out  of  a  supposed  omission  of 
the  plaintifls'  names  from  the  documents  presented  by  the 
defendant  to  obtain  the  order  to  show  cause  against  his  discharge, 
was  submitted  to  the  jury.  That  is  entirely  different  from  in- 
serting a  creditor's  name  and  omitting  the  amount  due  him, 
which  is  held  to  be  essential  in  Stanton  v.  Ellis  (ifbi  supra)  be- 
cause the  two  thirds  cannot  be  ascertained.  In  that  case  it  was 
held  that  the  entire  omission  of  a  creditor's  name  or  insertion 
of  an  incorrect  amount  would  ^iot  have  made  the  proceedings 
defective  (p.  579,  per  DENIO,  J.,  2  R.  S.,  81,  §  3,  subd.  4). 

There  was  no  evidence  in  the  case  where  the  contract,  on 
which  the  judgment  of  the  plaintiffs  sued  on  was  obtained,  was 
made.  Prima  facie,  therefore,  the  discharge  was  good  against 
it.  Proof  of  a  party's  mere  residence  in  another  State  was  im- 
material, and  properly  excluded. 

There  being  no  error  in  the  rulings  of  the  Court  on  the  trial, 
the  judgment  should  be  affirmed  with  costs. 

Judgment  affirmed. 


NEW  SERIES ;  VOL.  I.  63 

Haskins  v.  Kelly. 

HASKINS  against  KELLy. 
New  York  Superior  Court"  General  Term,  October,  1863. 

CLAIM    AND    DELIVERY. — LEVY. — ACTION    AGAINST    SHERIFF. — 
CHATTEL  MORTGAGE. — EVIDENCE. 

A  requisition  in  proceedings  of  claim  and  delivery  to  recover  possession  of 
goods,  in  an  action  brought  for  the  purpose,  against  one  who  purchased 
them  at  a  wrongful  sale,  will  justify  the  sheriff'  in  taking  them,  although 
the  defendant  acted  as  an  agent  in  the  purchase,  if  the  papers  are  served 
and  the  seizure  made  while  the  goods  remain  actually  in  his  possession . 

One  whose  goods  are  taken  by  the  sheriff,  in  such  proceedings  against  a 
third  person,  can  maintain  an  action  against  the  sheriff  for  damages,  not- 
withstanding his  having  given  the  sheriff  notice  of  his  claim,  under  sec- 
tion 216  of  the  Code  of  Procedure,  and  subsequently  having  withdrawn  it 
for  the  purpose  of  permitting  the  sheriff  to  deliver  the  goods . 

A  transfer  of  a  chattel  mortgage,  merely  by  way  of  collateral  security  for  the 
payment  of  a  debt  is  a  pledge,  not  a  mortgage  thereof;  and  need  not  be 
recorded.- 

Notwithstanding  such  pledge  the  pledger  may  afterward  assign  the  mort- 
gage to  a  third  person,  who  may  enforce  it  by  a  sale  of  the  goods,  subject 
however  to  the  lien  of  the  pledge. 

The  lien  of  a  pledge  is  destroyed  by  a  tender  of  the  amount  due. 

Where  the  mortgagor  of  chattels  borrows  money  to  buy  in  the  mortgage, 
and  procures  an  assignment  of  it  to  the  lender,  as  security  for  repayment 
of  the  loan,  the  mortgage  becomes  in  the  hands  of  the  latter  a  mere  pledge 
for  the  loan,  and  is  discharged  by  a  tender  thereof. 

Where  the  holder  of  a  chattel  mortgage  pledged  it  for  payment  of  a  certain 
sum,  and  subsequently  assigned  it; — Held,  that  in  the  assignee's  action 
against  third  persons  for  converting  the  goods  mortgaged,  evidence  of  such 
pledge  was  admissible  as  bearing  on  the  question  of  damages. 

Exceptions  taken  on  the  trial  of  the  cause,  and  directed  by 
the  court  to  be  heard  in  the  first  instance  at  General  Term. 

This  action  was  in  the  nature  of  trover.  It  was  brought  by 
DEWITT  C.  HASKINS,  to  recover  from  JOHN  KELLY,  sheriff  of  the 
city  and  county  of  New  York,  and  THOMAS  MURPHY,  one  of  his 
general  deputies,  the  value  of  several  printing  presses  and 
materials,  taken  and  detained  by  them. 

The  defendants,  answering  separately,  justified  taking  the 
goods  by  virtue  of  a  requisition  for  their  delivery  issued  to  the 


64:  ABBOTTS'  PRACTICE  REPORTS. 

Haskins  v.  Kelly. 

sheriff  in  proceedings  of  claim  and  delivery  under  the  Code  of 
Procedure,  in  a  former  action  brought  by  William  M.  Hayes 
against  John  Miller,  at  a  time  when  Miller  was  alleged  to  have 
been  in  possession  of  the  property.  For  a  further  answer  the 
defendants  alleged  that  at  the  time  of  the  commencement  of 
the  present  action,  one  John  J.  Smith,  and  not  the  plaintiff, 
was  the  owner  of  the  property,  and  entitled  to  its  possession. 

The  cause  was  tried  before  Mr.  Justice  WHITE  and  a  jury, 
on  June  9th,  1862,  and  two  following  days. 

The  facts,  some  of  the  particulars  of  which  are  more  fully 
stated  in  the  opinion  of  the  court,  were  briefly  as  follows. 

The  plaintiff,  Haskius,  claimed  title  under  a  chattel  mort- 
gage, and  the  foreclosure  thereof.  This  mortgage  was  given  by 
Hayes,  originally  the  owner  of  the  property,  to  one  Thurber,  to 
secure  $3,795,  and  was  dated  July  23d,  1860.  Hayes  procured 
his  friend  Yincent  to  advance  him  money  to  obtain  an  as- 
signment of  the  mortgage ;  and  to  secure  Yincent's  advances 
Hayes  gave  him  a  bill  of  sale  of  the  property,  and  when  the  as- 
signment of  the  mortgage  was  obtained  it  was  made  to  Yin- 
cent,  who  agreed  to  allow  Hayes  to  repay  him  in  instalments. 
This  assignment  from  Thurber  to  Yincent,  was  recorded,  as 
was  the  mortgage  itself.  Subsequently  Hayes  borrowed  of 
John  J.  Smith,  $500 — to  pay  upon  the  mortgage,  and  secured 
the  repayment  of  that  loan  by  his  note,  and  by  obtaining  Yin- 
cent  to  assign  the  mortgage  to  Smith  as  collateral  security. 
Yincent  subsequently  assigned  the  mortgage  to  the  pres -nt 
plaintiff.  His  former  assignment  of  it  to  Smith,  was  not  re- 
corded. The  amount  remaining  due  to  Yincent  under  the  mort- 
gage at  the  time  of  the  assignment  to  the  plaintiff  was  $1,035. 
— The  plaintiff  employed  a  constable  (West)  to  foreclose  the 
mortgage.  Hayes,  the  mortgagor,  tendered  to  West,  the  amount 
due,  with  $20  additional  to  cover  expenses,  which  West  re- 
fused to  receive ;  claiming  a  much  larger  sum,  including  also  a 
charge  of  $155,  for  services  in  foreclosing,  and  $17  expenses. 
Accordingly  West  proceeded  with  the  sale :  and  the  property 
was  bid  in  by  John  Miller,  who  acted  as  agent  for  the  plaintiff. 
Miller  bid  in  his  own  name,  and  immediately  proceeded  to 
make  an  assignment  of  the  property  to  the  plaintiff.  Mean- 
while Hayes,  whose  tender  had  been  refused,  prepared  the  pa- 
pers necessary  for  an  action  to  recover  the  property  from  whom- 
soever should  be  the  purchaser,  and  immediately  after  the  sale 


NEW  SERIES  ;   VOL.  I.  65 

Haskins  v.  Kelly. 

and  before  any  change  of  possession,  inserted  the  name  of  Mil- 
ler as  defendant  therein,  and  Murphy,  one  of  the  defendants  in- 
the  present  action  took  possession  of  the  goods  under  the  re- 
quisition and  subsequently  served  the  papers  on  Miller. 

Haskins  having  received  his  assignment  from  Miller,  in  or- 
der to  prevent  the  delivery  of  the  goods  to  Elayes,  served 
on  the  sheriff  a  notice  and  affidavit,  under  section  21  ri  of  the 
Code  of  Procedure,  that  he  claimed  to  be  the  owner.  Subse- 
quently he  served  on  the  sheriff  the  following  notice  : 

"  For  the  purpose  of  this  action,  and  to  enable  you  to  deliver 
the  propercy  to  the  defendant,  1  hereby  waive  and  withdraw 
the  claim  I  made  to  the  property  in  question  under  sec.  216  of 
the  Code,  and  also  withdraw  the  affidavit  presented  to  you  in 
this  case ;  but  this  is  not  to  prejudice  my  title  to  the  property, 
as  between  me  and  the  defendant,  or  any  other  person.  You 
will  please  deliver  the  property  to  the  defendant  the  same  as  if 
such  affidavit  and  claim  mere  never  delivered  by  me  to  you  in 
this  action." 

Some  weeks  after  the  sale  by  the  plaintiff,  Smith  caused  the 
property,  or  part  of  it,  to  be  sold  under  his  claim  upon  the  mort- 
o-awe,  and  bid  it  in  himself. 

3      r">      / 

The  plaintiff  subsequently  commenced  the  present  action  to 
recover  damages  from  the  sheriff  and  his  deputy  for  taking  the 
goods  in  the  proceedings  against  Miller.  The  jury  found  a  ver- 
dict for  the  defendants ;  and  the  cause  now  came  before  the 
court  on  the  plaintiff's  exceptions. 

E.  F.  JBullard,  for  the  plaintiff.— I.  All  sales  by  Smith, 
after  his  mortgage  was  paid,  were  void,  and  the  plaintiff  was 
entitled  to  recover  for  the  property  Smith  sold,  even  if  Smith's 
$500  interest  was  prior  to  the  plaintiff's  (3  Den.,  33 ;  13  Barb., 
631). 

II.  The  defendant  did  not  act  under  Smith's  assignment  in 
taking  or  holding  the  propertjr.  He  was  in  no  manner  con- 
nected with  Smith's  title.  The  court,  therefore,  erred  in  admit- 
ting the  evidence  as  to  the  assignment  to  Smith,  and  in  refus- 
ing to  charge  as  requested,  that  if  the  jury  find  that  the  assign- 
ment in  question  was  made  to  the  plaintiff  without  notice  of 
the  assignment  to  Smith  being  given  to  him  or  his  agents, 
then  the  plaintiff's  rights  are  prior  to  Smith's,  and  are  not  af- 
fected thereby.  (6  Mann.  &  Or.) 
K  S.— VOL.  I.— 5. 


ABBOTTS'  PRACTICE  REPORTS. 


Haskins  v.  Kelly. 


III.  Even  if  the  defendant  could  set  up  Smith's  title,  the 
Court  erred  in  charging,  "  that  Haskins  took  subject  to  the 
rights  and  equity  of  Smith,  whether  they  were  Disclosed  to 
Haskins  or  not  at  the  time  of  the  transfer  to  him."  It  is  con- 
ceded that  the  plaintiff  took  subject  to  all  latent  equities,  which 
Hayes,  the  mortgagor,  had  against  the  mortgagee,  and  the 
plaintiff  was  bound  to  inquire  of  him  as  to  them.  But  that  rule 
has  no  application  to  equities  in  favor  of  assignees  (unless  we 
claim  through  them)  or  third  parties,  who  do  not  record  or  give 
proper  notice  of  their  assignment  (Williamson  v.  Brovn,  15  Jf".  Y. 
[1  Smith],  354).  If  so,  no  man  could  take  an  assignment  without 
inquiring  of  every  man  on  the  globe  if  he  held  an  assignment  of 
the  mortgage  before  he  could  safely  purchase  of  the  mortgagee. 

The  assignment  to  Smith  was,  in  effect,  a  mortgage  for  $500 
(Thompson  v.  Blanchard,  ±N.  Y.  [4  Comst.'],  303).  The  assign- 
ment was  therefore  void,  because  it  was  not  recorded  as  a,  chat- 
tel mortgage.  (Idem.}  The  doctrine  laid  down  in  Story  Eq.,§  409; 
Corning  v.  Murray,  3  JBar'b.,  652,  and  that  class  of  cases,  i&not 
overruled  by  Bush  v.  Lathrop  (22  N.  Y.  [8  Smith],  535).  The  case 
of  Burr  v.  King,  decided  in  the  Court  of  Appeals,  in  June  Term, 
1852,  but  not  reported,  is  directly  in  point.  In  that  case  Pettit 
held  two  mortgages  upon  the  same  premises,  and  assigned  the 
younger  to  King,  under  such  statements  as  would  estop  him 
from  setting  up  the  prior  mortgage  against  King.  Pettit  after- 
wards assigned  the  oldest  mortgage  to  Burr.  The  Court  of 
Appeals  held  that  the  latter  was  not  bound  by  the  latent  equi 
ties  of  King  against  Pettit,  the  plaintiff's  assignor. 

IY.  The  Court  erred  in  admitting  the  evidence  of  the  tender, 
and  in  charging  that  the  tender  defeated  the  plaintiff's 
lien,  and  that  he  had  no  right  to  foreclose  it.  The  Court, 
should  have  charged  that  the  tender  had  no  effect.  The  case  of 
Kortright-y.  Cady  (21  N.  Y.  \7  Smith],  343),  was  a  case  of  real  es- 
tate, and  can  have  no  application  to  chattel  mortgages.  A  mort- 
gage of  chattels  differs  from  one  of  real  estate.  It  is  a  defeasible 
sale  (Butler  v.  Miller,  1  N.  Y.  [1  Comst.'],  428;2l'JV.  Y.  [7  Smith'], 
347;Mattison-y.Baucns,  \N.  Y.[l  Comst.~],  295;  Ferguson  v.  Lee, 
9  Wend.,  258  ;  Brown  v.  Bement,  8  Johns.,  75 ;  Patchin  13.  Pierce, 
12  Wend.,  61 ;  Burdick  v.  McVanner,  2  Den.,  170).  It  is  conceded 
a  mortgagor  may  come  into  equity  to  redeem.  Now,  under  the 
Code,if  the  mortgagee  sues  in  trover  for  the  value,  before  foreclos- 
ure, the  defendant,  by  way  of  counterclaim  in  his  answer,  may  ask 


NEW  SERIES ;  VOL.  I.  67 

Haskins  v.  Kelly. 

to  redeem  by  way  of  affirmative  relief  (13  Barb,,  629).  The  same 
doctrine  is  conceded  in  22  2f.  Y.,  494.  But  the  sheriff  in  this  case 
does  nob  set  up  in  his  answer,  any  claim  for  equitable  relief,  or  ask 
to  redeem.  He  places  himself  upon  his  replevin  papers,  and  as- 
serts that  the  title  at  law  is  in  Hayes,  the  mortgagor.  But 
even  if  the  defendant  had  undertaken  to  redeem,  by  asking  for 
affirmative  relief  in  this  action,  he  was  too  late,  as  the  mort- 
gage was  already  foreclosed  upon  notice,  and  the  equity  of  re- 
demption cnt  off  before  this  action  was  commenced.  Hayes 
should  have  commenced  action  to  redeem,  and  stayed  the  fore- 
closure by  injunction,  and  asked  for  an  account  to  settle  the 
amount  unpaid. 

V.  The  action  in  favor  of  Hayes  was  not  commenced  until 
after  the  Sheriff  was  informed  that  Miller  was  a  mere  agent, 
and  that  the  plaintiff  was  the  party.  The  Court  therefore  erred 
in  charging  that  the  action  was  commenced  by  a  l)ona>  fide  at- 
tempt, to  serve  the  papers  (17  How.  Pr.,  477).  The  Court  pro- 
perly charged,  that  the  plaintiff  has  a  right  to  sustain  this  action, 
if  he  is  the  owner  of  the  property.  Sec.  216  of  the  Code  does 
not  prevent  the  plaintiff  from  bringing  this  action.  It  provides 
a  remedy  by  claim,  instead  of  action,  but  the  party  may  waive 
the  claim  and  bring  the  action  (King  v.  Orser,  4  Duer,  43). 

i 

A.  J.  Vanderpoel,  for  the  defen  dants. — I.  The  Court  sub- 
mitted to  the  Jury  the  question  as  to  the  amount  due  upon  the 
mortgage,  and  as  to  the  sufficiency  of  the  amount  tendered ; 
these  facts  having  b,een  determined  in  favor  of  the  defendant, 
it  follows,  as  a  conclusion  of  law,  ihat  the  lien  of  the  mortgage 
upon  the  property  was  discharged,  and  the  power  of  sale  was 
gone.  The  creditor  could  from  that  time  look  onlv  to  the  per- 
sonal security  of  his  debtor  (6  Wend.  693,  60S  ;  Kortright  v. 
Cady,  supra;  and  cases  cited ;  La  Motte  v.  Archer,  4  E.  D. 
Smith,  46  ;  McLean  v.  Walker,  10  Johns.  J?.,  471 ;  Hunter  v. 
Le  Conte,  6  Cow.,  728 ;  Pattison  v.  Hull,  9  Cow.,  747 ;  Hinman 
v.  Judson,  13  Barb.,  629 ;  Charter  v.  Stevens,  3  Denio,  33  ; 
Parish  v.  Wheeler,  22  2F.  Y.,  494  ;  Mason  v.  Sudani,  2  Johns. 
Ch.  R.,  172  ;  Pratt  v.  Stiles,  17  How.  Pr.,  211). 

It  was  the  right  and  duty  of  the  Sheriff  to  take  the  property 
under  the  claim  and  delivery  papers.  In  this  respect,  the  case 


68  ABBOTTS'  PRACTICE  EEPORTS. 

Haskins  v.  Kelly. 

was  fairly  submitted  to  the  Jury.  ISTo  action  will  lie  by  plaintiff 
against  the  Sheriff,  except  under  sec.  216  of  the  Code.  This 
does  not  enable  the  plaintiff  to  maintain  a  suit,  unless  th,e  Sherift 
delivers  the  property  to  the  plaintiff  in  the  action. 

But,  if  the  plaintiff  could  have  maintained  an  action,  he 
abandoned  and  lost  it  by  his  withdrawal  on  the  15th  of  July, 
and  before  this  suit  was  commenced. 

There  is  no  provision  which  authorizes  or  justifies  the  Sheriff 
in  giving  the  property  to  the  third  party,  when  he  interposes 
a  claim  under  sec.  216  of  the  Code.  He  need  not  deliver  the 
property  to  the  plaintiff  in  the  action,  when  such  a  claim  is  in- 
terposed by  a  third  party,  but  the  law  does  not  allow  a  defend- 
ant thus  to  have  his  property  taken  from  him  at  the  suit  of  a 
plaintiff,  and  then  delivered  to  a  stranger  to  the  action,  with- 
out security.  The  defendant  cannot  indemnify  against  the 
claim  of  the  third  party,  and  yet  the  property  can,  on  the 
plaintiff's  theory,  be  taken  from  him  and  given  to  a  third  per- 
son, who  does  not  give  any  security  (Edgerton  v.  Ross,  6  Abb. 
Pr.,  189;  Dearman  v.  Blackburn,  1  Sneed  [Tenn.],  390;  Wat- 
kins  v.  Page,  2  Wis.,  9). 

III.  The  assignment  of  the  mortgage  to  the  plaintiff  was  ta- 
ken with  full  notice  of  the  previous  assignment  to  Smith. 

IV.  None  of  the  exceptions  to  the  admissibility  of  the  evi- 
dence were  well  taken. 

BY  THE  COTJKT.* — ROBERTSON,  J.— The  plaintiff  claims  the 
property  in  controversy,  by  virtue  of  a  sale  thereof  under  an  in- 
strument of  hypothecation  of  it  executed  by  the  original  owners 
to  a  Mr.  Thurber,  held  by  the  plaintiff  as  assignee  thereof.  At 
such  sale  an  agent  of  the  plaintiff,  (Miller),  bought  such  property 
and  took  possession  of  it  for  him,  subsequently  transferred  it  to 
him,  and  informed  him  he  had  done  so.  The  original  owner 
commenced  an  action  and  proceedings  of  claim  and  delivery  for 
it  after  such  sale,  against  Miller  (the  agent),  out  of  whose  manual 
possession  the  defendants  as  Sheriff  and  Deputy  Sheriff  took  it, 
by  virtue  of  the  duly  verified  written  claim,  in  such  action, 
which  was  placed  in  their  hands  for  service.  Before  the  service 
of  the  summons,  in  such  action,  and  the  seizure  of  the  property 
under  such  claim,  the  officer  who  served  them  was  informed, 

*  Present  ROBERTSON,  WHITE  and  BARBOUR,  JJ. 


NEW  SEEIES ;  VOL.  I.  69 

Haskins  v.  Kelly. 

that  Miller  claimed  the  property  only  as  the  plaintiff's  agent. 
It  was  contended  on  the  trial  that  such  information  prevented 
the  defendants  from  justifying  under  the  claim  in  such  action, 
but  how,  was  not  clearly  stated.  It  was  now,  however,  urged 
that  the  action  was  not  commenced  until  the  actual  service  of 
the  papers  on  Miller  the  agent,  and  that  an  instruction  by  the 
Court  to  the  jury  that  a  bona  fide  attempt  to  serve  the  papers 
was  equivalent  to  a  service  for  the  purpose  of  commencing  the 
action,  was  erroneous. 

Two  things  would  be  necessary  to  make  such  charge  erroneous. 
first,  That  the  priority  of  the  service  of  the  papers  to  the  giving 
of  information  of  the  plaintiff's  claim  should  be  material.  Sec- 
ondly, That  an  actual  possession  by  one  wrongdoer  for  the  bene- 
fit of  another,  required  a  suit  for  the  property  to  be  brought 
against  the  latter  in  order  to  justify  a  seizure  of  it  in  the  hands 
of  the  former  under  a  claim. 

There  was  no  evidence  that  the  property  ever  left  the  actual 
possession  of  Miller,  until  the  service  of  the  papers  on  him.  The 
mere  private  recognition  by  him  of  a  right  in  the  present  plain- 
tiff, even  if  made  after  the  sale  but  not  notified  to  the  defendants 
at  the  time  of  such  service,  clearly  could  not  deprive  the  legal 
owner  of  the  right  of  taking  the  goods  out  of  the  manual  posses- 
sion of  the  actual  possessor  in  an  action  against  him.  Such  a 
mere  constructive  change  of  possession  might  warrant  an  action 
against  the  principal,  and  the  taking  the  possession  away  from 
his  agent,  (§  209),  but  could  not  defeat  the  right  of  proceeding 
against  the  primary  wrongdoer  while  still  in  possession.  It 
therefore  became  immaterial  to  inquire  whether  the  action  was 
begun  before  the  service  of  the  papers  or  not ;  and  consequently 
it  is  immaterial  whether  section  99  of  the  Code,  is  confined  to 
the  commencement  of  actions  to  save  the  statute  of  limitations, 
or  whether,  under  sections  135  and  209,  jurisdiction  over  the 
property,  at  least  if  in  Miller's  possession,  was  acquired  by 
delivery  of  the  papers  to  the  defendant  to  be  served. 

The  fifth  request  of  the  plaintiff  to  the  Court,  to  charge  that 
the  defendants  took  the  property  wrongfully  as  against  him, 
unless  they  took  it  out  of  Miller's  possession,  involves  substan- 
tially the  same  question.  But  there  was  no  evidence  of  any 
change  of  actual  possession  to  the  plaintiff  by  Miller  before  the 
service  of  the  papers  on  him  and  the  seizure  of  the  goods.  The 
sale  took  place,  and  the  goods  were  seized  by  virtue  of  the  claim 


70  ABBOTTS'  PKACTICE  EEPOKTS. 

Haskins  v.  Kelly. 

and  delivery  papers,  within  a  quarter  of  an  hour  of  each  other. 
Those  papers  had  already  been  prepared  with  a  blank  for  the 
name  of  the  defendant  in  that  action,  were  forthwith  put  in  the 
present  defendant's  hands,  and  could  easily  have  been  served 
within  that  time.  Miller  did  not  execute  a  transfer  to  the  plain- 
tiff until  half  an  hour  after  his  own  purchase.  The  person  who 
was  directed,  in  Miller's  presence,  to  take  possession  of  the  goods, 
(Tillerton),  did  not  do  so.  He  only  examined  them  as  Miller's 
agent.  There  was  in  fact  no  evidence  to  go  to  the  jury,  of  any 
change  of  even  constructive  possession  of  the  goods  from  Miller 
to  the  plaintiff,  before  the  service  of  the  papers  on  the  former, 
in  the  action  against  him. 

The  withdrawal  by  the  present  plaintiff,  of  the  claim  which 
he  interposed  in  the  action  against  Miller,  so  as  to  permit  a  de- 
livery of  the  property  to  him,  probably  did  not  operate  as  a 
waiver  of  any  claim  under  the  216th  section  of  the  Code. 
That  section  seems  to  have  been  intended  simply  for  the  protec- 
tion of  the  sheriff  in  case  he  should  deliver  property  seized  in 
an  action  of  claim  and  delivery  to  a  plaintiff  therein,  and  not  in 
order  to  sanction  its  delivery  to  a  defendant.  Upon  a  claim  by 
a  third  party,  a  failure  by  the  plaintiff  to  give  a  proper  indem- 
nity, does  not  entitle  such  sheriff  to  deliver  the  property  seized 
to  such  third  party.  He  can  merely  permit  the  original  defen- 
dant, from  whose  possession  the  property  was  taken,  to  resume 
it,  by  relinquishing  it  himself.  The  previous  rule  of  the  common 
law  as  amended  by  statute,  justified  an  officer  in  delivering 
property  to  a  plaintiff  in  an  action  of  replevin  after  a  sheriff's 
jury  found  it  to  be  his  (Shipman  v.  Clark,4  ./>£?&.,  446  ;  King  v.Orser, 
4  Duer,  431 ;  Edgerton  v.  Ross,  6  Abb.  Pr.,  189).  The  section 
in  question  dispenses  with  the  necessity  of  such  trial.  There 
being  no  evidence  in  the  case,  as  to  what  has  become  of  the 
property,  it  must  be  presumed  to  have  remained  in  the  posses- 
sion of  the  defendants  since  its  seizure,  which  would  be  an  un 
reasonable  time  to  wait  for  indemnity  from  the  plaintiff.  The 
Court  was  therefore  right  in  charging  that  the  present  plaintiff 
could  bring  the  action  if  he  had  a  right  to  the  property. 

The  right  of  Mr.  J.  S.  Smith  to  the  possession  of  the  goods  in 
question  in  October,  1861,  when  the  action  was  begun,  if  material, 
requires  a  fuller  examination  of  the  plaintiff's  rights  under  the 
instrument  of  hypothecation  executed  by  Hayes  to  Thurber,  as 


NEW  SERIES  ;  VOL.  I.  71 


Haskins  v.  Kelly. 


well  as  its  validity  as  security  for  any  sum,  and  if  valid,  the 
amount. 

That  instrument  was  executed  in  July,  1860,  to  secure  the 
payment  by  Hayes  to  Thurber  of  a  certain  sum.  Before  the 
29th  of  October  following,  a  judgment  against  Thurber  for  an 
amount  sufficient  to  extinguish  the  debt  secured  by  such  instru- 
ment,was  bought  for  a  much  smaller  sum  by  Hayes  against  Vincent. 
The  latter  undoubtedly  advanced  the  money  on  the  26th  of  Oc- 
tober, 1860,  to  pay  for  it,  but  he  testified  that  he  first  bought  it, 
and  afterwards  agreed  to  let  Hayes  have  it  for  the  same  price  he 
paid  for  it.  The  latter  swore  he  made  the  purchase  ;  and  an- 
other witness,  (H.  W.  Smith),  testified  he  negotiated  it  for  him. 
Hayes  executed  a  bill  of  sale  for  the  property  to  Vincent  on  the 
day  he  borrowed  the  purchase  money  for  the  judgment,  for  a 
consideration  exceeding  it,  but  the  amount  of  which  was  made  up 
by  legal  expenses  and  small  items.  This  was  agreed  to  be 
security  for  the  loan,  until  Thurber  should  assign  to  Vincent  the 
instrument  executed  to  him.  The  amount  was  to  be  repaid  by 
weekly  instalments. 

These  facts  establish  the  advance  by  Vincent  of  the  purchase 
money  for  the  Thurber  judgment ;  his  contemporary  agreement 
that  in  case  he  procured  a  transfer  to  himself  of  the  instru- 
ment executed  by  Hayes  to  Thurber,  he  would  relinquish  to 
Hayes  all  his  interest  in  such  instrument  upon  being  repaid  the 
amount  due  him ;  while  until  such  instrument  was  assigned  to 
him,  he  was  to  hold  as  security  for  the  repayment  of  his  loan, 
the  bill  of  sale  of  th^e  26th  of  October.  The  result  of  the  whole 
transaction  would  then  be,  that  the  agreement  by  Vincent  to 
assign  to  Hayes,  the  debt  due  by  him  to  Thurber,  as  well  as  the 
instrument  of  hypothecation  given  to  secure  it,  when  carried 
out,  would  extinguish  such  debt.  In  equity  it  was  an  actual  as- 
signment by  Vincent  of  it,  conditional  only  while  the  bill  of 
sale  remained  as  security  for  the  loan.  After  the  assignment 
from  Thurber  to  Vincent  was  completed,  the  instrument  held 
by  the  former  was  to  take  the  place  of  the  bill  of  sale  as  security 
for  the  loan  by  the  latter  to  Hayes.  Thus  instead  of  being  a 
security  for  the  amount  due  to  Thurber,  it  became  at  most  only 
one  for  the  smaller  sum  due  to  Vincent.  He  understood  it  to 
be  so,  and  accordingly  informed  the  plaintiff's  agents  at  the 
time  they  purchased  it,  that  only  a  certain  sum  was  due  on  it ; 


72  ABBOTTS'  PRACTICE  REPORTS. 

Haskins  v.  Kelly. 

being  equal  to  the  amount  advanced  by  him  less  subsequent 
payments. 

In  February,  1861,  while  Yincent  held  both  the  instrument 
executed  to  Thurber  and  the  bill  of  sale,  which  appears  never 
to  have  been  cancelled,  Hayes  borrowed  of  Mr.  J.  S.  Smith  a 
certain  sum  which  he  paid  to  Yincent  on  account  of  the  money 
due  him.  He  gave  Smith  his  note  for  the  amount  borrowed  at 
sixty  days,  for  the  payment  of  which  Yincent  assigned  to  the 
latter  the  original  instrument  executed  to  Thurber  as  security. 
In  April,  1861,  after  the  note  became  due,  before  this  action 
was  commenced,  and  while  the  property  pledged  was  still  in 
possession  of  the  defendants,  Smith  claiming  to  act  by  virtue  of 
the  instrument  executed  to  Thurber  and  its  assignment  by  the 
latter  to  Yincent,  bought  in  the  property  at  a  sale  conducted  by 
himself  by  way  of  foreclosure. 

This  action  was  commenced  in  October,  1861.  By  the  assign- 
ment to  Smith  by  Yincent  of  the  instrument  executed  by  Hayes 
to  Thurber,  he  (Smith),  became  the  mere  pledgee  of  the  debt 
secured  by  it ;  and  if  the  entire  legal  title  to  it  was  thereby  so 
transferred  to  him,  as  to  enable  him  to  foreclose  any  right  of 
redemption  under  it  and  take  possession  of  the  chattels  trans- 
ferred thereby,  and  sell  them,  he  would  still  be  trustee  to  Vin- 
cent or  his  assigns  of  the  residue  of  the  proceeds  of  any  sale, 
after  deducting  enough  to  satisfy  his  own  claim,  or  if  the  chat- 
tels were  bought  in  by  him  he  would  be  trustee  of  the  chattels 
themselves.  Such  transfer  to  Smith,  being  the  mere  mortgage 
of  a  debt,  and  of  an  accompanying  pledge  given  to  secure  it,  did 
not  need  to  be  recorded  any  more  than  an  absolute  assignment 
of  such  mortgage,  the  Statute  of  this  State  on  the  subject  extend- 
ing to  mortgages  of  goods  and  chattels  only  and  not  choses  in 
action  (N.  T.  Sess.  L.  1833,  ch.  279). 

Under  these  circumstances  it  appears  to  me  that  the  power  of 
Yincent  to  transfer  the  mortgage  held  by  him  to  the  plaintiff, 
after  its  transfer  to  Smith,  so  as  to  enable  the  former  to  sell  the 
mortgaged  property  without  the  assent  of  the  latter,  depends 
entirely  upon  the  question  whether  the  assignment  to  the  latter 
was  a  pledge  or  a  mortgage.  The  leading  difference  between 
these  two  kinds  of  transfers  is,  that  the  former  is  security  for 
the  payment  of  a  debt,  and  the  latter  is  a  conditional  sale  which 
becomes  absolute  by  nonperformance  of  the  condition,  which 
repuires  payment  of  a  specified  sum  at  a  fixed  day  ^Butler  v.  Mil- 


NEW  SERIES ;  VOL.  I.  73 


Haskins  v.  Kelly. 


ler,  1 N.  Y.  [1  Comst.~\,  496).  So  much  so,  that  on  default,  although 
the  mortgagor's  interest  if  in  possession  may  be  levied  on  and 
sold  to  the  extent  of  his  right  to  possess  them,  the  chattels  them- 
selves cannot  be  sold  on  execution  against  him  (Stewart  v.  Slater, 
6  Duer,  83,  96).  After  defkult  the  mortgagee's  interest  may  be 
sold  on  execution  against  him  (Ferguson  v.  Lee,  9  Wend.,  258). 
Even  a  grant  of  a  power  to  sell,  and  return  the  surplus  beyond 
the  specified  sum,  does  not  alter  the  character  of  the  instrument 
(Dane  v.  Mallory,  16  Barb.,  46,  Burdick  v.  McVanner,  2  Den., 
170).  Even,  however,  in  case  of  a  mortgage,  the  mortgagor  has 
a  right  to  perform  the  condition,  where  it  is  the  payment  of 
money,  at  any  reasonable  time  after  that  specified  in  it  (Pratt 
v.  Stiles,  17  How.Pr.,  211,  S.  0.,  9  Abb.  Pr.,  150),  and  he  may 
even  reduce  the  damages  in  an  action  against  him  by  the  mort- 
gagee for  conversion  of  the  mortgaged  property  to  the  amount 
specified  in  such  mortgage  (Himnan  v.  Judson,  13  Barb.,  629), 
although  this  is  said  in  Parish  v.  Wheeler  (22  JV.  T".)?  to  be  on 
the  ground  of  avoiding  circuity  of  action.  Or  he  may  recover 
damages  for  any  of  it  sold  by  the  mortgagee  under  a  power  of 
sale  beyond  enough  to  pay  the  amount  mentioned  in  the  mort- 
gage (Charter  v.  Stevens,  3  Den.,  33).  This  right  of  per- 
formance of  a  condition  subsequent,  called  sometimes  an  equity 
of  redemption,  may  be  cut  off  by  a  sale  on  reasonable  notice  or 
enforced  by  an  action  (Patchin  v.  Pierce,  12  Wend.,  61). 

One  test  whether  a  transfer  of  property  is  a  pledge  or  a  mort- 
gage is,  whether  a  debt  exists  independent  of  it,  for  the  payment 
of  which  it  is  security  (Langdon  v.  Buel,  9  Wend.,  80),  in  which 
case  it  is  the  former.  A  pledge  of  property  capable  of  physical 
delivery,  requires  that  it  should  be  so  delivered  ^Barrow  v. 
Paxton,  5  Johns.,  258  ;  Cortelyou  v.  Lansing,  2  Cai.  Cas.,  200). 
Property  not  capable  of  such  delivery  may  be  pledged  in  writ- 
ing (Wilson  v.  Little,  2  N.  T.  [Comst],  443).  The  transfer  of  choses 
in  action  as  mere  security  for  a  debt  is  always  a  pledge. 
(Wheeler  v.  Newbould,  16  N.  T.,  392 ;  M'Lean  v.  Walker, 
10  Johns.,  471 ;  Garlick  v.  James,  12  Id.,  146 ;  White  v.  Platt, 
5  Den.,  269).  When  so  received,  without  special  authority  the 
pledgee  cannot  sell  them  (Wheeler  v.  Newland,  ubi  sup.;  see 
Brown  v.  Ward,  3  Duer,  660),  or  compromise  them  (Garland 
v.  James,  ubi  sup.} ;  he  can  only  wait  till  they  mature  and  collect 
them  (Wheeler  v.  Newland,  ubi  sup.} 

In  the  present  case  the  assignment  to  Smith  is  as  clearly  a 


74:       ABBOTTS'  PRACTICE  REPORTS. 

Haskins  v.  Kelly. 

pledge  of  the  mortgage  or  pledge  from  Hayes,  assigned  by  Yin- 
cent,  and  not  a  mortgage  or  conditional  sale.  If  lie  could  sell 
that  mortgage  and  the  debt  it  secured,  on  notice  and  buy  it  in, 
he  might  then  become  assignee  of  it,  and  entitled  to  collect  it 
by  notice  and  sale  of  the  chattels  or  by  an  action.  Until  he  did 
so,  however,  the  plaintiff  as  an  assignee  of  the  mortgage  by 
Hayes  subject  only  to  the  special  property  in  Smith  which  the 
pledge  created,  and  for  an  injury  to  which  he  could  only  recover 
to  the  extent  of  his  lien  (Brownell  v.  Hawkins,  4  Barb.,  491,) 
might  proceed  to  foreclose  and  sell  under  such  mortgage,  and 
no  one  could  object  except  Smith.  Certainly  Hayes  could  not. 

The  charge  of  the  Court  that  the  transfer  to  the  plaintiff  was 
subject  to  the  rights  of  Smith  even  if  he  had  notice  of  them  as 
an  abstract  proposition  was  correct  (Muir  v.  Schenck,  3  Hill, 
228  ;  Poillon  v.  Martin,  1  Sandf.  Ch.  569  ;  Sweet  v.  Van  Wyck, 
3  Barb.  Ch.,  647),  and,  therefore,  this  third  request  to  charge  that 
"  the  plaintiff's  rights  were  prior  to  Smith's,  and  not  affected  there- 
by," would  have  been  properly  refused  if  material. 

The  Court  charged  more  favorably  for  the  plaintiff,  and  gave 
him  all  he  asked  by  instructing  the  jury  that  no  right  or  equity 
of  Smith's  interfered  with  the  plaintiff's  right  to  pursue  his 
remedy  on  the  mortgage  for  his  interest  in  it,  and  if  he  had 
acquired  a  good  and  valid  title  to  the  mortgage  he  had  a  right 
to  go  on  and  foreclose  it. 

The  second  request  to  charge  "  That  the  defendants  were  not 
entitled  to  defend  under  Smith  a  judgment  as  against  the 
plaintiff,"  was  therefore  fully  met  in  substance.  The  principle 
involved  was,  who  had  the  better  title  or  superior  right  so  far  as 
this  action  was  concerned,  and  it  was  immaterial  whether  that 
was  announced  by  stating  that  the  plaintiff  had  it,  whatever 
Smith's  rights  were,  or  that  Smith,  under  whom  the  defendants 
claimed,  had  none  as  against  the  plaintiff. 

The  last  question  on  the  merits  arises  from  exceptions  to  a 
refusal  to  charge  as  desired  by  the  first  and  fourth  requests  to 
charge.  The  former  was  "  that  the  tender  made  by  Smith  to 
"West  could  have  no  effect,  and  did  not  impair  the  plaintiff's 
right  under  the  mortgage."  And  the  latter  that  it  was  wholly 
immaterial  what  sum  was  to  be  paid  by  Hayes,  as  long  as  he  did 
not  pay  or  commence  an  action  to  redeem  before  foreclosure. 
The  amount  due  to  Vincent  on  the  mortgage  to  Thurber  when 
he  assigned  it  to  the  plaintiff,  did  not  exceed  $1035.  The  sum 


NEW   SERIES;  VOL.  I.  75 

Haskins  v.  Kelly. 

tendered  was  $1055.  The  only  pretence  that  it  was  not  sufficient 
was  that  the  constable  claimed  the  extravagant  sum  of  $155  for 
commissions  which  was  not  chargeable  against  the  mortgagee. 
It  did  not  appear  that  the  extra  twenty  dollars  was  not  sufficient 
to  cover  expenses  and  interest,  or  that  any  objection  was  made 
to  the  amount.  The  question  of  the  amount  due  was  left  to 
the  jury. 

But  it  is  claimed  that  the  plaintiff  had  a  right  to  complete  his 
foreclosure  in  pais,  and  sell  after  a  tender  of  the  amount  due, 
and  that  the  owner's  only  remedy  was  to  commence  an  action 
to  redeem.  It  is  contended  that  there  is  a  distinction  between 
mortgages  of  real  and  those  of  personal  property  in  that  respect. 
It  was  finally  settled  in  Kortright  v.  Cady,  (21  N.  Y.,  343), 
in  the  Court  of  Appeals,  that  a  tender  of  an  amount  due  on  a 
mortgage  on  land,  even  after  the  law  day,  if  refused,  destroyed 
the  lien  of  it  on  the  land.  By  giving  the  mortgagor  the  right 
to  redeem,  by  rendering  him  only  liable  for  the  amount  to  be 
paid,  in  case  of  his  conversion  of  the  property,  and  by  making 
the  mortgagee  liable  for  any  sales  beyond  the  amount  of  his 
mortgage  (Harriman  v.  Judson,  Charter  v.  Stevens,  ubi  sup^  it 
would  seem  to  have  become  a  mere  security  for  money.  It  is 
true  that  in  the  case  of  Butler  v.  Miller  (I W.  T.  [1  Comst.],  496),  the 
Judge  who  delivered  the  opinion  of  the  Court  notices  the  dis- 
tinction between  mortgages  of  real  and  personal  estate,  and  states 
that  the  latter  is  a  sale,  and  operates  to  transfer  the  whole  legal 
title  of  the  thing  mortgaged  to  the  mortgagee,  subject  only  to 
be  defeated  by  a  full  performance  of  the  condition.  It  was  not 
necessary  for  the  decision  of  that  case,  but  some  respect  is 
due  to  even  an  obiter  dictum  in  the  Court  of  highest  resort  when 
relying  on  distinctions  so  drawn.  It  has  been  held  that  after 
forfeiture,  no  tender  can  revest  the  title  in  the  mortgagor,  and 
even  that  acceptance  of  part  is  no  waiver.  But  there  are  author- 
ities to  the  contrary  (Jenkins  v.  Jones,  2  Giffard's  7?.,  99 ; 
Patchin  v.  Pierce,  12  Wend.,  61). 

Such  distinctions,  however,  between  mortgages  of  real  and 
personal  estate  cannot  prevail  in  case  of  a  pledge,  which  is  set- 
tled to  be  a  mere  security,  conferring  only  a  special  property  in 
the  property  pledged  (Brownell  v.  Hawkins,  ubi  sup.}  for  any 
fall  of  value  in  which,  after  a  tender,  the  pledgee  is  responsible 
(Griswold  v.  Jackson,  2  Edw.^  641),  which  would  not  be  the  case 
if  a  bill  to  redeem  was  necessary.  The  interest  of  the  pledgee 


T6  ABBOTTS'  PEACTICE  EEPORTS. 

Haskins  v.  Kelly. 

is  in  fact  a  mere  lien,  like  a  mortgage  of  lands,  and  should  be 
relieved  by  the  same  process.  The  reasoning  in  the  case  of 
Kortright  v.  Cad y,  before  cited,  is  equally  applicable  to  pledges, 
and  must  govern  this  case. 

The  only  question,  therefore,  which  remains,  is,  whether  the 
instrument  executed  by  Hayes  to  Tliurber  was  a  mortgage  or  a 
pledge,  or  became  so  by  the  agreement  of  Hayes  and  Vincent. 
It  recites  that  it  was  executed  "  for  securing  the  payment  of  the 
money  thereinafter  mentioned,"  and  its  condition  was  to  be  void 
on  payment  of  the  sum  of  $3Y95,  on  demand.  It  contains  an 
authority,  in  case  of  non-payment,  to  take  possession  of  the  goods 
and  sell  them  for  the  best  price,  and  out  of  it  pay  the  amount 
before  mentioned,  and  all  charges,  and.  return  the  overplus  to 
Hayes.  The  recital  as  to  the  object  of  it  would  not  render  the 
mortgagor  person  ally  liable  (Culver  v.  Sisson,  3  N.  Y.  [3  Comst^], 
264),  unless  he  converted  the  property  (Weed-y.  Oovill,  14  Barb., 
242).  This  doctrine  seems  contrary,  however,  to  the  case  of  Case  v. 
Boughton  (11  Wend.,  106),  which  treats  the  sum  mentioned  in 
the  condition  as  a  debt.  The  power  of  selling,  also,  and  restor- 
ing surplus  moneys,  seems  not  to  defeat  the  absoluteness  of  the 
title  on  default  (Dane  v.  Mallory,  Bendick  v.  McYanner,  ubi 
sup).  Possibly  under  these  decisions  such  original  instrument 
was  only  a  mortgage.  But  by  the  agreement  between  Yincent 
and  Hayes,  as  the  latter  testified,  he  borrowed  of  the  former  the 
money  to  buy  the  judgment  against  Thurber.  The  former 
charged  it  against  Hayes  in  his  books.  He  claimed  it  as  a  debt 
due  him ;  and  a  note  taken  at  the  same  time  was  agreed  to  be 
applied  on  it  when  collected.  There  was  nothing  to  prevent  his 
suing  Hayes  for  such  debt  if  not  paid  on  demand.  The  original 
instrument,  .therefore,  had  lost  its  character,  if  it  ever  had  it,  as 
a  mortgage  or  conditional  sale,  and  became  by  the  oral  agree- 
ment of  the  parties  a  mere  pledge  to  secure  a  debt.  Upon  the 
payment  by  Hayes  of  his  debt  to  Yincent  at  any  time,  the  lien 
on  the  chattels  mortgaged  was  gone.  If  there  was  any  conflict 
of  evidence  on  this  point,  there  was  no  request  that  it  should  be 
left  to  the  jury.  The  request  was  peremptory  that  the  tender  was 
of  no  avail,  and  did  not  contain  a  hypothetical  case ;  and  there- 
fore in  order  to  sustain  the  refusal,  any  state  of  facts,  which  the 
evidence  would  warrant,  may  be  assumed  to  exist  in  this  case. 
The  refusal  of  the  Court,  therefore,  to  charge  as  requested  was 
not  erroneous. 


NEW  SEEIES ;  YOL.  I.  77 


Hatch  v.  Wolfe. 


An  exception  was  taken  to  the  admission  of  the  assignment  to 
J.  J.  Smith  in  evidence  after  objection,  but  this  was  clearly 
admissible  on  the  question  of  damages,  if  the  plaintiff  were 
entitled  to  recover.  His  rights  were  subordinate  to,  but  not 
destroyed  by  Smith's,  who  might  equally  have  a  right  of  action 
against  the  defendants  for  converting  his  property  or  securities. 
Both  clearly  could  not  have  a  right  of  action  for  the  same  injury, 
and  there  was  no  privity  between  Smith  and  the  plaintiff,  so 
that  the  former  would  be  entitled  to  the  benefit  of  any  recovery 
in  this  case  by  the  latter.  Besides  this,  Smith  has  foreclosed 
his  mortgage,  and  sold  the  property  adversely  to  the  plaintiff; 
that  possibility  the  jury  had  a  right  to  take  into  view  in  assess- 
ing damages,  unless  they  were  limited  to  deducting  the  amount 
due  Smith  from  the  value  of  the  goods.  Of  course,  the  fact  that 
the  verdict  of  the  jury  was  in  favor  of  the  defendants,  does  not 
render  the  reading  of  the  assignment  to  Smith  in  their  hearing 
unwarranted.  The  Court  instructed  them,  notwithstanding,  that 
the  rights  of  the  plaintiff1  were  paramount,  and  no  request  was 
made  as  to  damages. 

There  being  no  error  in  the  admission  or  rejection  of  evidence, 
or  the  facts  of  the  charge  or  refusals  to  charge  which  were 
excepted  to,  judgment  must  be  given  for  the  defendants,  with 
the  costs  of  the  trial  and  the  hearing  of  the  exceptions. 


HATCH  against  WOLFE. 
New  York  Common   Picas ;    General  Term,  June^  1865. 

COVENANT. — CAUSE  OF  ACTION. — REFERENCE. — APPEALABLE 

OBDEK. 

An  action,  brought  against  an  out  going  lessee,  to  recover  the  amount  laid 
out  in  putting  a  house  in  repair  under  a  covenant  on  his  part  in  the  lease 
to  leave  the  premises  in  good  order,  is  an  action  upon  the  covenant  and 
not  an  action  in  tort. 

Where  such  an  action  involves  the  examination  of  a  long  account  it  may  be 
referred . 

An  order  directing  a  reference  in  such  a  case  is  not  appealable. 


78  ABOTTS'  PRACTICE  REPOETS. 

Hatch  v.  Wolfe. 

Appeal  from  an  order  of  reference. 

The  defendant,  Bernard  Wolfe,  hired  a  dwelling  house  of 
the  plaintiff,  covenanting  to  leave  the  premises  in  good  order 
at  the  end  of  the  term,  ordinary  wear  and  tear  excepted.  He 
left  it  in  bad  order  ;  the  plaintiff,  Roswell  D.  Hatch,  Recr., 
&c.,  had  it  put  in  a  tenantable  condition,  and  brought  suit  to 
recover  the  amount  so  laid  out.  On  joining  issue,  plaintiff 
moved  for  a  reference,  alleging  that  the  examination  of  a  long 
account  would  be  necessary — this  being  granted,  the  defend- 
ant appealed  from  the  order  to  the  General  Term. 

Wm.  H.  Newman  and  D.  M.  Porter,  for  the  appellants. — 

I.  The  action  cannot  be  maintained  except  as  an  action  for 
damages.  It  is  not  an  action  for  an  accounting,  neither  is  it  an 
action  on  an  account.     The  plaintiff's  cause  of  action,  is  for  a 
wrong  (a  misfeasance  or  negligence  in  permitting  the  property 
to  be  destroyed).     Such  an  action  is  not  referable,  although  it 
may  be  necessary  to  examine  a  large  number  of  items  constitu- 
ting the  plaintiffs  claims  for  damages  (McMaster  v.  Booth,  4 
How.  Pr.,  427).    "Where  there  is  no  account  in  the  ordinary 
sense  of  the  term,  the  cause  cannot  be  referred  (Van  Rensselaer 
v.  Jewett,  6  Hill,  373).     The  defendant,  as  has  been  said,  is 
sought  to  be  charged  for  wrongfully  permitting  the  property 
to  be  destroyed.  Actions  for  torts  are  not  referable  (19  Wend., 
108). 

II.  An  account  in  the  ordinary  acceptation  of  the  word  can 
alone  be    compulsorily  referred   (M'Cullough  v.   Brodie,   13 
How.  Pr.,  346  ;  Cameron  v.  Freeman,  18  Id.,  310). 

Can  these  items  of  damage  in  this  action  be  held  to  be  an 
account  in  the  ordinary  sense  of  the  word  ? 

An  account  in  the  ordinary  sense  of  the  word  implies  a  con- 
tract between  the  parties  relating  to  the  particular  demand 
and  out  of  which  it  arises ;  here  the  plaintiff  has  gone  on,  and 
made  what  he  alleges  to  be  certain  repairs  and  improvements 
because  of  the  defendant's  alleged  negligence  without  the 
knowledge  or  consent  of  the  defendant.  Can  such  a  statement 
constitute  an  account ;  if  so,  an  assault  and  battery  could  do  so, 
and  the  plaintiff  make  up  a  long  bill  of  particulars  for  so 
many  buttons  destroyed,  repairing  pantaloons,  and  so  on,  by 
reason  of  the  assault,  &c.,  and  get  a  reference. 


NEW  SERIES ;  YOL.  I.  79 

Hatch  v.  Wolfe. 

III.  A  difficult  question  of  law  is  sworn  to  by  the  defendant 
and  specified  in  his  affidavit,  Code  271. 

IV.  The  answer  denies  the  defendant's  liability  (Van  Rensse- 
.aer  «.  Jevrett,  ubi  supra). 

V.  There  is  no  account  between  the  parties,  but  merely  alleged 
items  laid  out  to  repair  the  effects  of  the  defendant's  careless- 
ness and  negligence.    The  right  of  trial  by  jury  should  be  held 
inviolate,  and  there  are  especial  reasons  why  this  is  a  cause  for 
a  jury. 

Roswell  D.  Hatch,  for  respondents. — I.  An  order  of  reference 
is  not  appealable  (Gray  v.  Fox,  1  Code  R.,  N.  S.,  334 ;  Bryan 
v.  Brennon,  7  How.  Pr.,  359  ;  Dean  v.  Empire  Ins.  Co.,  9  Ib., 
69  ;  tallman  v.  Hinman,  10  Ib.,  89  ;  Ubsdell  v.  Root,  1  Hilt., 
173  ;  Baker  v.  Nausman,  1  Hilt.,  546  ;  Conlan  v.  Latting, 
[Woodruff,  J.],  3  E.  D.  Smith,  353). 

II.  Under  the  broad  provision  of  the  Code  (§  271),  a  refer- 
ence may  be  ordered  in  any  action  if  the  trial  will  require  the 
examination  of  a  long  account. 

The  Code  is  broader  than  the  Revised  Statutes.  By  the  lat- 
ter the  Court,  could  only  refer  where  the  action  was  "  founded 
on  contract "  (2  Rev.  Stat.,  Yol.  2,  p.  480,  3d  Edition). 

Under  the  Code  there  is  no  restriction,  and  any  action,  even 
one  founded  on  fraud,  may  be  referred  (Sheldon  v.  Wood,  3 
Sand.,  739).  On  a  motion  for  a  provisional  remedy,  the  Court 
may  direct  a  reference  to  hear  and  decide  the  issues  in  the  ac- 
tion (Jackson  v.  De  Forest,  14  How.  Pr.,  81).  A  reference  can 
be  compelled  where  the  Court  can  see  that  the  trial  must  ne- 
cessarily involve  the  examination  of  a  long  account  (Keeler  v. 
Pough.  PL  R.,  10  flow.  Pr.,  11 ;  Sheldon  v.  Weeks,  7  N.  Y. 
Leg.  Ols.,  57 ;  Conlan  v.  Latting,  3  E.  D.  Smith,  353  ;  Bow- 
man v.  Sheldon,  1  Duer,  607:  Masterton,  v.  Howell,  10  Abb. 
Pr.,  118 ;  Mills  v.  Thursby,  11  How.  Pr.,  113). 

In  an  equitable  action  to  set  aside  a  conveyance  on  ground  of 
fraud,  the  Court  in  its  discretion  ordered  the  issue  to  be  tried 
by  a  referee  where  the  Circuit  Calendar  was  crowded  (M'- 
Mahon  -y.Allen.  10  How.  Pr.,  384).  The  question  whether  the 
trial  of  an  issue  of  fact  will  require  the  examination  of  a  long 
account  is  a  question  to  be  determined  summarily  upon  appli 
cation  to  refer  (Dean  v.  Empire  Mut.  Ins.  Co.,  9  How.  Pr.,  69). 
The  allegation  in  the  moving  affidavit,  made  by  the  attorney, 


80      ABBOTTS'  PRACTICE  EEPORTS. 

Hatch  v.  Wolfe. 

that  the  trial  would  necessarily  involve  the  examination  of  a 
long  account,  is  sufficient  to  authorize  the  Court  to  order  a  re- 
ference, and  siKjh  order  is  not  appealable  (Ibid). 

III.  The   authorities  cited  from  Wendell  by  the  appellant 
were  before  the  Code  and  under  the  Revised  Statutes,  and  not 
applicable  to  the  present  sj^stern. 

IV.  There  are  46  items,  separate  and  distinct,  different  bills, 
paid  to  various  mechanics  in  putting  the  premises  in  order.  It 
would  be  impossible  for  a  jury  to  recollect  them,  unless  by  ta- 
king notes  of  reference. 

BY  THE  COURT. — DALY,  F.  J. — This  is  not  an  action  for  a  tort, 
but  for  the  breach  of  a  covenant  to  keep  the  premises  which  had 
been  demised  to  the  defendant  in  good  and  tenantable  repair,  and 
the  order  directing  a  reference,  upon  the  ground  that  it  required 
the  examination  of  a  long  account,  is  not  an  order  affecting  the 
merits,  or  which  involves  a  substantial  right,  and  is  not  appeal- 
able (Dean  v.  Empire  Mut.  Ins.  Co.,  9  How.,  69  ;  Bryan  v.  Bren- 
non,  7  Ib.,  359  ;  Ubsdell  v.  Root,  7  Hilt.,  173). 

Even  before  the  Code  there  might  be  a  reference  in  an  action 
of  covenant,  if  the  examination  of  a  long  account  were  involved 
(Diedrick  v.  Richly,  19  Wend.,  110 ;  Bloom  v.  Potter,  9  Wend.,  40; 
Thomas  v.  Reab,  6  Wend.,  50).  And  if  the  action  is  one  in 
which  a  reference  may  be  ordered,  the  order  of  the  Judge  at 
the  Special  Term,  upon  the  question,  whether  the  examination 
of  a  long  account  is  or  is  not  involvedf  is  not  one  which  the 
Court  will  reverse  on  appeal  (Smith  v.  Dodd,  3  E.  D.  S7nit.h, 
348 ;  Kennedy  v.  Hilton,  1  Hilt.,  546). 

Defendant's  appeal  dismissed. 
BEADY,  J.  dissented. 


NEW   SERIES;  VOL.   I.  81 


Towle  v.  Palmer. 


TOWLE  against  PALMER 
'New   York  Superior  Court ;  General  Term,  December,  1863. 

PRE-EMPTIVE   RIGHTS. — COLLATERAL   INQUIRY  INTO  BREACH  OF 
PROVISO. — CONDITIONS. — ADVERSE  POSSESSION. — EVIDENCE. 

The  proviso  in  the  Act  of  April  3,  1807,  by  which  it  is  declared  that  the 
proprietors  of  lands  adjacent  shall  have  the  pre-emptive  right  in  all  grants 
made  by  the  Corporation  of  the  City  of  New  York,  of  the  lands  under 
water  in  the  Hudson  River  granted  to  the  city  by  that  Act, — is  a  mere 
restraint  on  alienation,  which  can  be  waived  by  the  original  grantors,  the 
State ;  and  does  not  confer  any  lezal  right  to,  or  interest  in,  such  lauds 
under  water,  upon  the  proprietors  of  the  adjacent  uplands. 

For  a  breach  of  the  proviso,  by  the  act  ot  the  corporation  in  granting  to  one 
who  is  not  the  true  owner  of  the  adjacent  upland,  the  State,  only,  can  re- 
enter ;  and  until  it  does  so,  such  a  grant  cannot  be  annulled  in  a  collateral 
inquiry. 

In  determining  whether  a  condition  in  a  deed  is  precedent  or  subsequent, 
the  main  test  is  whether  the  vesting  of  the  estate  granted  \>y  the  instru- 
ment containing  it,  is  postponed  until  the  happening  of  the  contingent 
event  forming  the  condition,  or  is  to  be  divested  by  it. 

Where  a  municipal  corporation,  owning  lands  under  water,  in  which  the 
proprietors  of  adjacejit  upland  had  by  law  a  pre-emptive  right,  granted 
the  same  to  persons  claiming  to  be  such  proprietors,  by  a  deed  which 
bound  the  grantees  to  pay  an  annual  rent,  with  a  right  of  distress  and  re- 
entry by  the  corporation,  on  default,  also  bound  the  grantees  to  fill  in  and 
construct  streets,  &c.,  with  a  right  of  re-entry  by  the  corporation,  on  de- 
fault, with  a  further  clause  declaring  that  the  deed  and  the  estate  granted 
Were  upon  the  condition,  that,  if  at  any  time  thereafter  it  should  appear, 
either  that  the  grantees  were  not  at  the  date  of  the  grant,  proprietors  of 
the  upland,  or  if  they  should  make  any  default  in  performance  of  their 
covenants,  the  grant  should  be  absolutely  null  and  void,  and  the  grantors 
might  re-enter,  &c  ; — Held,  that  this  created  not  a  precedent  but  a  sub- 
sequent condition,  as  well  as  to  the  proprietorship  of  the  uplands  as  res- 
pecting the  performance  of  covenants  ;  and  upon  its  subsequently  appear- 
ing that  the  grantees  were  not  the  true  proprietors  of  the  upland,  their 
title  was  not  divested  so  as  to  enable  the  true  proprietor,  on  receiving  a 
subsequent  grant  from  the  corporation,  to  recover  the  land  from  the  first 
grantees,  without  the  aid  of  aiiy  proceedings  by  the  corporation  or  the 
State  to  annul  the  first  grant. 

K  S.— VOL.  I.— 6. 


82  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

Notwithstanding  the  pre-emptive  right,  the  corporation  could  make  such 
first  grant,  subject  to  be  divested  by  State  action,  and  could  not  convey 
their  right  of  entry  for  a  breach  of  the  condition.  (BoswoRTH,  Ch.  J .,  dis- 
sented.) 

Where  different  parties  claim  the  same  premises  under  conflicting  grants 
from  the  same  source,  each  grant  being  upon  condition  that  the  grantee  is 
the  true  owner  of  adjacent  lands,  possession  under  such  grant  by  the  one 
who  was  not  the  true  owner  of  the  adjacent  lands,  cannot  be  deemed  ad- 
verse .so  as  to  ripen  into  a  title  as  against  the  other. 

In  an  action  by  the  true  owner  of  the  adjacent  lands,  to  recover  the  prem- 
ises granted,  evidence  of  his  recovery  of  the  adjacent  lands  against  third 
persons,  is  not  irrelevant,  he  being  required  to  establish  his  title  inde- 
pendently of  such  recovery.  Per  BOSWORTH,  Ch.  J. 


Appeal  by  the  defendants  from  a  judgment  entered  on  a  ver- 
dict against  them. 

This  action  was  brought  to  recover  a  part  of  a  lot  of  land  on 
the  north  side  of  Twenty-fifth  street,  in  the  city  of  New  York, 
475  feet  west  of  the  Tenth  Avenue,  which  the  plaintiff  claimed 
in  fee,  alleging  that  the  defendants  pretended  to  claim  some 
right  thereto,  but  their  claim  was  unlawful.  The  defendants 
were  Jacob  A.  Palmer  and  Isaac  E.  Smith,  the  latter  of  whom 
was  a  tenant  holding  under  the  former. 

The  cause  was  tried  on  the  16th  day  of  December,  1861,  be- 
fore Mr.  Justice  MONCRIEF  and  a  jury.  The  land  lay  originally 
in  the  Hudson  River,  396  feet  west  of  high-water  mark,  and  271 
feet  west  of  low-water  mark.  Both  parties  claimed  under  con- 
flicting grants  by  the  Corporation  of  the  city  of  New  York, 
which  resulted  from  a  controversy  as  to  the  title  of  two  lots  upon 
the  original  bank  or  upland,  in  front  of  which  the  premises  now 
in  question  lay.  These  two  lots,  designated  in  these  proceedings 
as  Nos.  117  and  118,  were  formerly  the  property  of  one  Mary 
Clarke.  The  plaintiff  claimed  under  various  mesne  conveyances 
from  Thomas  B.  Clarke,  a  beneficiary  named  in  her  will.  The 
defendants  claimed  under  her  heirs,  who  were  also  devisees  un- 
der the  will.  The  title  had  long  been  in  litigation.  The  plain- 
tiff, after  giving  in  evidence  the  deeds  under  which  he  claimed 
the  two  upland  lots,  proved  that  in  1849  he  brought  an  action  in 
this  Court,  against  one  John  Farney,  to  recover  lot  118,  who 
held  the  same  under  the  heirs  and  devisees,  and  who  appeared 
and  set  up  that  claim  as  a  defence  in  the  action  ;  and  that  tho 
plaintiff  recovered  judgment  declaring  the  title  to  be  in  him, 


5C      NEW  SERIES ;  VOL.  I.  83 

Toivle  v.  Palmer. 

and  awarding  him  possession  ;  and  that  on  appeal  this  judgment 
was  affirmed  by  the  Court  of  Appeals,  and  had  been  duly  exe- 
cuted by  putting  the  plaintiff  in  possession.  These  facts  were 
proved  by  the  judgment  roll  in  that  action,  which  was  admitted 
in  evidence  against  The  objection  and  exception  of  the  present 
defendants.  In  the  same  manner  the  plaintiff  was  allowed  to 
prove  a  like  recovery  from  Cortlandt  Wood,  of  lot  No.  117, 
which  had  been  claimed  by  him  under  the  same  heirs  and  de- 
visees. 

He  also  read  in  evidence  the  statute  of  April  3,  1807,  by 
which  the  State  of  New  York  granted  to  the  city  of  New  York 
certain  lands  under  water  in  front  of  this  bank  of  the  Hudson, 
"  provided  always  that  the  proprietor  or  proprietors  of  the  lands 
adjacent  shall  have  the  pre-emptive  right,  in  all  grants  made  by 
the  corporation  of  the  said  city,"  in  such  lands  under  water. 
He  also  read  the  Acts  of  February  5,  1826,  and  of  April  12, 
1837,  of  similar  character.  And  he  put  in  evidence  a  grant  to 
himself  from  the  City  Corporation,  dated  November  29,  1859, 
and  conveying  premises  described  as  water  lot  and  vacant  ground 
or  soil  to  be  made  land,  which  included  the  lot  in  question  in 
this  action.  He  also  produced  another  instrument  executed  by 
the  Corporation,  reciting  that  they  had  previously  granted  wa- 
ter lots,  including  these  premises,  to  the  heirs  of  Mary  Clarke, 
and  that  the  plaintiff*  had  represented  that  he  had  established 
his  title  thereto,  and  releasing  and  quit-claiming  them  in  con- 
sideration of  payment  of  a  gross  sum  in  lieu  of  rents. 

The  defendants,  to  prove  title  in  Palmer,  put  in  evidence  the 
previous  conveyance  by  the  city  to  the  heirs  of  Mary  Clarke, 
which  included  the  premises  in  question.  This  deed  was  dated 
March  31,  1837  ;  and  the  city  and  the  heirs  were  the  only  par~ 
ties  thereto.  It  reserved  certain  annual  rents  to  the  city,  with 
a  right  to  distrain  or  to  re-enter  for  non-payment.  The  grantees 
covenanted  also  to  fill  in  the  parts  of  the  water  lot  necessary  for 
the  streets,  at  their  own  expense,  whenever  required  by,  and  ac- 
cording to  the  directions  of  the  city.  The  city  also  covenanted 
that  the  grantees  might  enjoy  the  wharfage  from  the  water 
front  lying  between  the  streets  as  extended.  After  these  pro- 
visions the  deed  contained  the  following  clauses  : 

"  And  it  is  hereby  further  covenanted  and  agreed  by  and  be- 
tween the  said  parties  to  these  presents,  and  the  true  intent  and 


84  ABBOTTS'  PKACTICE  EEPOKTS. 

Towle  i).  Palmer. 

meaning  thereof  is  hereby   declared  to  be,  that  this  present 
grant,   or   any   words,  matter,  or  thing  in  the  same  contained 
shall  not  be  deemed,  construed,  or  taken  to  be    a   covenant  or 
covenants  of  warranty  or  seizin  of  the  said  parties   of  the   first 
part,  or  their  successors,  nor  to  operate  further  than  to  pass  the 
estate,  right,   title,  or  interest  they  have  or  may  lawfully  claim 
by  virtue  of  their  several  charters  and  various  acts  of  the  Legis- 
lature of  the  People  of  the  State  of  New  York  ;  and  it  is  further 
expressly  understood  and  agreed,  and  these  presents  and  the  es- 
tate hereby  granted,  are  upon  this  express  condition,  that  if,   at 
any  time  hereafter,  it  shall  appear  that  the  said  parties  of  the 
second  part  were  not,  at  the  time  of  the  date  of  these  presents, 
seized  of  a  good,  sure,  absolute,  and  indefeasible  estate  of  inher- 
itance in  fee  simple  of,  in,  and  to  the. lands  and  premises  on  the 
easterly  side  of  the  line  of  high  water,  arid  adjoining  to  the  wa- 
ter lot  and  ground  under  water  hereby  conveyed,  or  so  intended 
to  be  ;  or  if  the  said  parties  of  the  second  part,  their  heirs,  exe- 
cutors, administrators  or  assigns,  shall  make  default  in  the  per- 
formance of  any  or  either  of  the  covenants  above  contained  on 
their  part  and  behalf  to  be  observed,  performed,  fulfilled,   and 
kept ;  then,  and  in  every  such  case,  these  presents,   and   every 
article,  clause,  and  thing  herein  contained,  shall  be  absolutely 
null  and  void,  and  the  said  parties  of  the  first  part  and  their 
successors  shall,  and  may  forthwith  thereupon  enter  into  and  up- 
on the  said  premises  hereby  granted,  and  shall   thereafter  be 
seized  of  the  said  premises,  with  the  appurtenances,  free,  clear, 
and  discharged  of  and  from  any  claim,  right,  or  pretence   of 
claim  or  right,  of  the  said  parties  of  the  second  part,  their  heirs 
or  assigns,  anything  herein  contained  to   the  contrary  notwith- 
standing." 

The  defendants  gave  evidence  tending  to  show  that  upon  the 
execution  of  the  said  grant  of  March  31,  183T,  the  grantees 
therein  named  entered  into  the  possession  of  the  premises  thus 
granted  under  claim  of  title,  exclusive  of  any  other  right,  found- 
ing such  claim  upon  the  said  grant,  and  built  a  bulkhead  on  the 
Eleventh  Avenue,  and  filled  up  the  space  between  the  same  and 
the  original  shore,  and  that  they  have  been  in  continued  occu- 
pation and  possession  of  the  said  premises  under  such  claim  ever 
since,  by  themselves  and  grantees,  and  had  conveyed  the  lot  in 
question  to  the  defendant,  Isaac  E.  Smith,  who  had  let  the  same 
to  the  other  defendant,  Jacob  M.  Palmer. 


J  NEW  SERIES  ;  VOL.  I.  85 

Towle  v.  Palmer. 

The  Court  instructed  the  jury,  among  other  things,  that  the 
Acts  of  1807  and  1826  and  1837,  gave  to  the  Major,  Aldermen 
and  Commonalty  of  the  city  of  New  York  a  fee  to  the  land  in 
question,  with  a  limitation  as  to  disposal ;  and  that  any  grant  or 
disposition  thereof  by  the  Mayor,  &c.,  contrary  to,  or  in  contra- 
vention of,  the  terms  of  such  limitation,  was  absolutely  void,  and 
the  grantees  thereby  would  take  no  interest  or  estate  whatever. 
And  that  if  the  heirs  under  whom  defendants  claimed  were  not 
the  legal  owners  of  the  upland  lots  117  and  118  in  1837,  the 
Corporation  grant  to  them  was  void  in  its  inception,  except  that 
it  gave  a  qualified  possession  or  license  to  enter,  and  passed  no 
estate  or  interest  whatever  to  the  land  in  question. 

In  regard  to  the  title  of  the  plaintiif  to  those  lots,  he  stated 
that ; — if  they  found  him  to  be  owner  they  must  do  so  irrespect- 
ive of  any  decree  or  judgment  in  the  case  of  Towle  v.  Farney  ; 
he  must  prove  his  title  in  this  suit  to  the  lots  Nos.  117  and  118, 
precisely  die  same  as  he  was  required  to  do  in  that  case.  And 
as  to  the  question  whether  the  defendants  had  not  made  out  an 
adverse  possession  for  twenty  years  ; — that,  if  they  Went  into  the 
possession  of  the  premises  in  question  under  the  grant  to  them 
in  the  year  1837,  by  commencing  to  fill  up  the  land  immediate- 
ly in  front  of  lots  Nos.  117  and  118,  covered  by  water,  and  pro- 
gressed without  any  interruption,  and  had  been  in  that  posses- 
sion from  the  24th  of  February,  1840,  they  would  be  entitled  to 
a  verdict.  But  if  they  commenced  to  fill  up  in  1837,  and  ceased 
or  abandoned  the  work,  then  that  possession  would  not  be  such 
as  the  law  requires  to  give  them  title  by  reason  of  holding  ad- 
verse possession. 

The  defendants  excepted  to  the  first  and  third  of  the  points 
above  stated  in  the  charge.  The  jury  found  a  verdict  for  the 
plaintiff;  and  judgment  having  been  entered  thereon  the  de- 
fendants appealed. 

David  Dudley  Field,  for  the  defendants,  appellants. — I.  The 
first  and  second  exceptions  to  evidence  relating  to  the  two 
judgments  were  well  taken. 

The  judgment  rolls  in  actions  between  the  plaintiff  and  third 
persons  could  not  possibly  bind  the  defendants  in  this  action. 

II.  It  was  error  to  charge  that  the  grant  of  1837,  was  void; 
not  only  upon  the  true  construction  of  the  statutes,  but 
because  not  being  void  on  its  face,  the  court  could  not  pass 


86  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

on  that  question  in  this  action  (Nott  v.  Thayer,  2  JBosw.,  10 ; 
Jackson  v.  Lawton,  10  Johns.,  23  ;  People  v.  Manran,  5  Den., 
389,  399).  The  validity  of  a  patent  or  grant,  which  is  matter  of 
record,  cannot  be  questioned  in  a  collateral  proceeding.  The 
rule  is  founded  upon  the  principle  that  a  record  cannot  be 
overthrown  except  by  the  judgment  of  a  Court  on  an  issue 
upon  the  precise  question  of  its  validity  (People  v.  Mauran,  5 
Den.,  389 ;  Bledsoe  v.  Well,  4  Bibb,  329  ;  Jackson  <o.  Lawton, 
10  Johns.,  23  ;  Jackson  v.  Marsh,  6  Cow.,  281 ;  Bagnell  v. 
Broderick,  13  Pet.  S.  Ct.<  436  ;  Jackson  v.  Hart,  12  John*.,  77). 
III.  The  grant  to  Bayard  Clarke  and  others  vested  the  title 
in  them,  subject  to  be  defeated  by  the  condition  subsequent,  in 
respect  to  what  might  afterwards  appear  on  the  subject  of  the 
title  to  the  upland  (4  Kenfs  Com.,  4, 125  ;  2  Blackst.  Com.,  154 ; 
1  Washb.  on  R.  P.,  446  ;  Finlay  v.  King,  3  Pet.  8.  Ct.,  34:! ; 
Underbill  v.  Saratoga  R.  R.  Co.,  20  Barb.,  455  ;  Nicoll  v. 
N.  Y.  &  Erie  R.  R.  Co.,  12  N.  T.,  [2  £ern.~],  121 ;  Arm- 
strong v.  Carson's  Execrs.,  2  Doll.,  317 ;  Rogan  v.  Walker,  1 
TPwc.,-133;  Phelps  v.  Chesson,  12  Ired.  [Law],  199). 

N.  Dane  iLllingwood,  for  the  plaintiff,  respondent. — I.  The 
grant  from  the  corporation  to  the  heirs  of  Mary  Clarke  is,  in 
effect,  a  grant  of  an  estate  in  fee,  limited  upon  a  condition  pre- 
cedent. 1st.  It  clearly  was  not  the  intention  of  the  grantors 
to  vest  any  estate  whatever  in  the  grantees,  unless  they  were, 
at  the  time  of  the  making  of  such  grant,  the  owners  of  the  up- 
land. 2d.  This  was  made,  expressly,  the  condition  of  the 
grant,  and  it  conforms  with  the  restriction  contained  in  the 
grants  from  the  State  to  the  grantors  (Act  of  1807,  §  15, 
Davies'  Laws,  434).  3d.  The  words,  "  If  at  any  time  hereafter 
it  shall  appear,"  used  in  the  grant,  do  not  make  the  condition, 
itself,  any  less  a  condition  precedent,  (a.)  The  condition  was 
that  the  grantees  were,  at  the  time  of  the  making  of  the  grant, 
the  owners  of  the  upland.  If  this  were  not  true  (whether  such 
fact  was  known  or  not  at  the  time  of  the  making  of  the  grant) 
the  grant  was  void  at  its  inception,  (b.)  It  was  not  the  subse- 
quent discovery  that  constitutes  the  breach  of  the  condition  ; 
the  breach  consists  in  the  fact  that  the  grantees  were  nor,  at 
the  time  of  the  making  of  the  grant,  the  owners  of  the  upland. 

II.  If  the    grant  be  deemed  a  conveyance  in  fee,  limited 


NEW  SERIES;  VOL.- I.  87 

Towle  v.  Palmer. 

upon  a  condition  precedent,  and  if  the  fact  be,  that  the 
grantees  were  not,  at  the  time  of  the  making  of  the  grant,  the 
owners  of  the  upland,  then  no  estate,  whatever,  was  vested  in 
the  grantees  under  such  grant  (2  Bro.  C.  M.,  456,  441 ;  1  Vernon, 
83;  2  Vernon,  333;  5  Viner,  87 ;  4  Kent's  Com.,  8th  ed.,  129.) 

III.  Supposing  that  a  void  deed  can  be  made  the  basis  of 
an  adverse  possession,  a  party  claiming  title  by  possession, 
must  not  only  show  that  such  possession  was  adverse  in  its 
character,  at  the  time  of  the  execution  of  the  grant  under 
which  he  claims,  but  also  that  such  possession  was  continuous 
and  uninterrupted. 

IY.  The  charge  was  correct  as  to  the  effect  of  the  statute, 
and  the  validity  of  the  grant  to  the  heirs  of  Mary  Clarke,  and 
as  to  the  adverse  possession. 

Y.  The  records  in  the  cases  of  Towle  v.  Farney  and  Towle 
v.  Wood,  were  properly  admitted  in  evidence.  1st.  These 
records  were  not  introduced  for  the  purpose  of  concluding  the 
defendant,  but  as  tending  to  show  that  the  grant  to  the  heirs 
of  Mary  Clarke  was  void,  and  also  to  show  the  time  when  the 
title  to  the  upland  was  first  brought  in  question.  2d.  The 
Court,  in  the  charge  to  the  jury,  directed  them  to  find  the  title 
to  the  upland,  irrespective  of  those  records. 

BY  THE  COURT. — ROBEKTSON,  J. — The  plaintiff  is  bound  to 
make  out  one  or  more  of  the  following  principles  to  entitle  him 
to  recover  in  this  action. 

1st.  That  the  proviso  in  the  Statute  of  1807  (Laws  relating  to 
City  of  New  York,  434,  §15  [Davies],)  under  which  the  Corpo- 
ration of  the  City  of  New  York  derived  title  to  the  lands  in 
controversy,  requiring  them  in  case  of  any  conveyance  of  such 
lands,  to  recognize  a  pre-emptive  right  in  the  owners  of  the  ad- 
jacent upland,  operated  not  merely  as  a  partial  restraint  on 
alienation  by  such  Corporation,  but  conferred  some  new  positive 
indefeasible  right  to,  or  interest  in,  such  lands,  upon  such  owners 
of  such  upland. 

2d.  That  according  to  the  legal  interpretation  of  the  lan- 
guage of  the  grant  to  the  heirs  of  Mrs.  Clarke,  the  condition 
therein  contained  defeating  it,  in  case  they  should  not  prove  to 
be  the  owners  of  the  upland,  was  precedent  and  not  subsequent 
to  the  vesting  of  any  estate  by  virtue  thereof. 

3d.  That  the  right  of  forfeiture  and  re-entry,  in  case  such  con- 


88     \  ABBOTTS'  PRACTICE  KEPOETS. 


Towle  v.  Palmer. 


dition  were  determined  so  as  to  defeat  the  estate  conveyed  by 
such  grant,  could  be  transferred  by  such  city  corporation  to 
those  under -whom  the  plaintiff  claimed. 

I  omit  to  inquire,  as  unnecessary  for  the  present,  whether  the 
subjection  of  the  grant  to  such  corporation,  by  the  statute  before 
mentioned,  to  a  right  of  pre-emption  by  riparian  owners  in  case 
of  alienation  by  the  former,  would  convert  the  condition  in  such 
Clarke  grant  into  a  precedent  one ;  although  not  made  so  by 
the  terms  of  the  instrument  itself,  construed  according  to  their 
legal  import  and  effect,  or  would  render  the  grant  itself  abso- 
lutely void  because  not  made  subject  to  such  a  condition  prece- 
dent. The  principles  already  stated  require  first  to  be  disposed 
of,  as,  if  the  adjacent  riparian  owners  had  no  right  available  in 
law  by  them,  in  their  own  names,  or  if  the  condition  before 
mentioned  was  subsequent,  and  the  right  of  re-entry  for  its  hap- 
pening could  not  be  conveyed  by  the  city  corporation,  the  plain- 
tiff could  not  recover. 

As  to  such  first  principle,  it  is  to  be  observed  that  the  People 
of  the  State  of  New  York  could  grant  lands  absolutely  or  condi- 
tionally, by  an  act  of  the  Legislature  directly,  or  by  an  agent 
authorized  under  such  an  act :  that  in  case  of  an  absolute  grant, 
the  Legislature  could  not  repeal  such  act  so  as  to  avoid  such 
grant :  and  that  in  case  of  a  conditional  grant  it  would  only  re-en- 
ter by  proceedings  taken  to  annul  such  grant  (People  v.  Mauran, 
5  Den.,  389;  Williams  v.  Sheldon,  10  Wend.,  654;  Jackson  v. 
Marsh,  6  Cow.,  281 ;  Jackson  v.  Lawton,  10  Johns.,  22 ;  Sawe  v. 
Hart,  12  Johns.,  76 ;  Bledsoe  v.  Well,  4  Bibb,  329 ;  Bassell  v. 
Broderich,  supra;}  unless  in  case  of  a  condition  precedent. 
Thus  grants  of  land  under  water  by  the  Commissioners  of  the 
land  office  in  all  other  parts  of  the  State  except  the  City  of  New 
York,  are  declared  by  statute  to  be  void  unless  made  to  the 
owners  of  the  adjacent  upland  (1  R.  S.,  208,  §  67)  in  order  to 
accomplish  that  specific  result.  Prior  statutes  on  the  subject, 
differed  therein  from  such  statute  (2  Rev.  notes,  p.  29 ;  1  N.  Y.  L. 
\Greenl^,  284,  §  18 ;  1 L.  N.  Y.,  \_K  &  R.]  299,  §  11 ;  1  R.  S.  292, 
§  4) ;  and  received  a  different  construction  judicially,  (Champlain 
and  St.  L.  R.  R.  Co.  v.  Valentine,  19  Barb.,  484) ;  and  a  prior 
statute  not  containing  such  express  provision  avoiding  a  grant, 
but  one  similar  to  the  statute  under  consideration,  was  also  dif- 
ferently construed,  in  a  case  (People  v  Mauran,  'it hi  *np.}  where 
an  attempt  was  made  to  impeach  collaterally  the  validity  of  a 


NEW  SERIES ;  YOL.   I.  89 

Towle  v .  Palmer. 

grant  by  the  Commissioners  of  the  Land  office,  by  showing  that 
the  grantor  was  not  owner  of  the  adjacent  upland. 

The  well  known  mode,  in  a  statute,  of  restraining,  or  qualify- 
ing a  right  previously  granted  by  a  proviso,  cannot  be  used  to 
extend  one,  particularly  when  it  immediately  succeeds  the 
grant  intended  to  be  restrained  or  qualified  (D war  is  on  Stat- 
utes}. And  it  is  very  evident  that  the  proviso  under  considera- 
tion could  not  take  or  have  any  effect  while  the  City  Corporation 
should  continue  to  hold  the  property  granted,  even  if  perpet- 
ually. During  the  term  the  land  under  water  was  so'  held,  the 
upland  might  pass  through  a  hundred  hands,  be  subdivided 
into  numerous  parcels,  and  each  be  held  by  different,  intricate 
and  embarrassed  titles.  No  title  to  the  land  under  water  would 
follow  such  changes  of  right  to  the  upland,  but  a  mere  possibility, 
only  available  in  case  the  City  Corporation  undertook  to  alien- 
ate the  former,  and  to  be  protected  by  proceedings  to  annul 
the  prohibited  grants.  •  There  is  nothing  to  prevent  a  repeal  by 
the  Legislature  of  the  proviso  in  reference  to  grants  by  the 
City  Corporation  of  lands  under  the  statute  of  1807,  so  as  to 
leave  the  latter  free  to  grant  them  to  whomsoever  they  please. 
It  is  a  mere  restraint  of  alienation  which  can  be  waived  by  the 
original  grantors,  the  State  /  and  is  possibly  valid  because  limited 
to  particular  grantees.  If  the  State  had  intended  to  carry  out 
a  settled  plan  or  policy  to  favor  riparian  owners  in  the  grant  of 
adjacent  lands  under  water,  to  be  carried  out  by  a  municipal 
corporation  within  whose  jurisdiction  they  might  lie,  they 
would  have  vested  some  right  or  definite  interest  in  such  ripa- 
rian owners,  and  not  merely  have  reserved  a  well  known  com- 
mon law  right  to  themselves,  to  divest  the  grantees  of  such  lands 
from  such  Corporation  of  their  right,  by  legal  proceedings.  It 
would  be  dangerous,  therefore,  to  conclude  that  because  the 
Legislature  has  shown  some  inclination  to  favor  adjacent  riparian 
owners,  they  necessarily  must  have  conferred  on  them  a  legal 
right. 

No  case  has  been  pointed  out  to  me,  nor  have  I  been  able  to 
find  any,  in  which  the  reservation  by  a  grantor,  whether  a  pub- 
lic body  or  an  individual,  of  the  right  of  annulling  a  grant  by 
his  grantor  of  lands,  in  case  the  latter  did  not  give  a  preference 
to  certain  designated  persons,  could  be  recognized  in  a  court  of 
law  at  the  instance  of  such  preferred  persons.  Definite  rights 
or  even  good  will  in  the  pre-emption  of  lands  given  to  such  pre- 


90  'ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

ferred  persons  are  so  cognizable  (Armour  v.  Alexander,  10 
Paige,  571 ;  Craig  v.  Tappin,  2  Sandf.  C/i.,  78 ;  Lytle  v.  The 
State  of  Arkansas,  9  How.  S.  Ct.,  314) ;  but  not  in  case  of  a 
mere  reservation  to  a  grantor.  The  State  clearly  has  a  right 
to  reenter  for  breach  of  the  proviso,  and  hold,  as  it  orig- 
inally held,  the  lands  so  reentered  upon :  and  the  upland  owner 
could  have  no  right  as  against  it.  I  am  satisfied  thus  far,  that 
none  of  those  under  whom  the  plaintiff  claimed  derived  any 
title  to  the  lands  in  question  from  their  riparian  ownership  of 
adjacent  lands,  cognizable  in.  a  Court :  that  for  the  breach  of 
the  proviso  in  the  Statute,  the  State  only  could  reenter,  until 
which  time  no  grant  by  the  City  Corporation  could  by  virtue  of 
anything  contained  in  the  Statute  of  1807  be  annulled  in  a 
collateral  inquiry.  It  is  not  necessary  to  recur  to  the  mischie- 
vous consequences  of  giving  a  different  effect  to  such  statute 
in  regard  to  land  in  the  City  of  New  York  of  great  value,  with 
intricate  and  confused  titles,  including  the  unavoidable  retarda- 
tions of  the  objects  proposed  to  be  gained  by  such  statute  as  there- 
in recited,  preferring  to  rely  on  its  plain  provisions,  and  techni- 
cal reservation  of  a  well  known  right  which  would  enable  the 
State  to  carry  out  what  policy  it  pleased. 

The  Corporation  of  the  City  of  New  York  having  thus  an 
absolute  right  to  make  an  unconditional  grant  of  the  lands  under 
water,  granted  to  them  under  the  statute  of  1807  before  men- 
tioned, defeasible  only  by  action  of  the  State ;  the  next  question 
that  arises  is  whether  the  grant  which  they  made  to  the  heirs 
of  Mrs.  Clarke  (which  is  conceded  to  be  conditional),  was  sub- 
ject to  a  precedent  or  a  subsequent  condition.  It  is  true,  in  re- 
gard to  both  subsequent  and  precedent  conditions,  that  while  no 
formal  words  are  necessary  to  create  them,  there  are  no  techni- 
cal words  of  such  strength  in  expressing  a  condition  to  be  either, 
that  will  prevent  a  manifest  intention,  appearing  on  the  face  of 
the  instrument  to  the  contrary,  from  causing  it  to  be  construed 
as  the  other.  But  that  is  a  principle  prevailing  in  regard  to 
every  estate,  interest  or  defeasance  created  by  deed  ;  and  such 
must  be  deemed  to  be  the  extent  of  the  language  used  in  such 
cases  as  Nicoll  v.  N.  Y.  &  Erie  E.  R.  Co.  (12  N.  T.  [2  JTera.],  121). 
Neither  kinds  are  favorites  with  the  law ;  but  if  there  be  any  dif- 
ference in  that  respect,  precedent  ones  are  least  so  (Craig  v.  Wells, 
11  N.  Y.  [1  Kernl],  315),  because  they  prevent  anything  from 
passing  by  a  deed.  Nothing  can  dispense  with  their  perform- 


NEW  SERIES;   YOL.  I.  91 


Towle  v.  Palmer. 


ance  except  what  may  amount  to  a  new  grant  (4  Kent  Com., 
125  ;  2  Black.  Com.,  154),  while  a  condition  subsequent  may 
be  waived  or  released  (1  Washb.  on  Real  Pr.,  446). 

The  usual  form  of  a  condition  precedent  is  to  convey  the  land 
upon  condition,  either  that  the  grantee  do  or  abstain  from  doing 
something,  or  that  something  has  happened  or  failed  to  happen,  * 
before  the  vesting  of  the  estate,  without  any  additional  words  of 
forfeiture,  right  of  entry,  or  declaration  that  the  instrument  shall 
be  void  on  the  occurrence  of  the  event  which  forms  the  condi- 
tion, which  additional  words  are  not  necessary  (1  Shep.  Touch., 
121,  ft  seq.}  The  form  of  a  condition  subsequent  is  that  the  estate 
ehall  be  divested,  cease,  be  annulled,  or  some  equivalent  expres- 
sion, and  that  a  right  of  re-entry  shall  arise,  on  the  happening 
of  the  event  constituting  such  condition.  The  main  question  to 
be  determined  in  regard  to  the  construction  of  all  conditions,  is 
whether  the  vesting  of  the  estate  granted  by  the  instrument 
containing  them  is  postponed  until  the  happening  of  the  contin- 
gent event  forming  the  condition,  or  is  to  be  divested  by  it.  If 
anything,  therefore,  is  required  by  such  instrument  to  be  done 
by  the  grantee  in  it,  involving  the  possession  of  an  estate  by  him, 
or  a  right  of  possession,  it  would  go  far  to  determine  the  charac- 
ter of  the  condition.  The  nature  of  the  event  or  contingency 
forming  the  condition,  the  time  required  for  the  occurrence,  as 
well  as  its  adaptability  to  either  following  or  preceding  the 
vesting  of  the  estate,  may  be  considered  in  determining  the  na- 
ture of  the  condition  (Underhill  v .  Saratoga  R.  R.  Co.,  20  Barb., 
455  ;  Armstrong  v.  Carson,  2  DalL,  317 ;  Nicoll  v.  Erie  R.  R.  Co., 
\ulri  sup.] ;  and  Finlay  v.  King's  Lessee,  3  Pet.  S.  Ct,.,  346). 

In  this  case  the  grant  to  the  heirs  of  Mrs.  Clarke  was  a  bipar- 
tite indenture,  to  which  the  Corporation  of  New  York  was  party 
of  the  first  part,  and  such  heirs  by  name  parties  of  the  second 
part.  The  consideration  of  it,  as  expressed  in  it,  was  the  pay- 
ment and  performance,  by  the  grantee,  of  the  rents  and  cove- 
nants therein  mentioned.  The  rent  was  a  certain  annual  sum 
of  money,  without  rebate  for  taxes.  For  any  arrears  in  the  pay- 
ment of  such  rent,  the  City  Corporation  was  to  have  a  right  to 
distrain  and  re-enter.  Besides  the  covenant  to  pay  rent,  one  of 
the  other  covenants  of  the  'grantees,  who  also  executed  such 
grant,  was,  that  they  would  build  bulkheads  and  fill  up  roads 
thirty  feet  wide  over  such  premises,  to  become  public  streets, 
and  keep  them  in  repair ;.  which  was  followed  by  a  clause  of  re- 


92  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

entry  in  case  of  failure  to  do  so  within  a  certain  time.  It  also 
contained  a  covenant  by  the  grantors  to  permit  the  grantees  to 
collect  wharfage  from  such  premises,  except  from  the  end  of  the 
streets.  This  was  followed  by  a  clause  which  declared  as  fol- 
lows, viz. — that  it  was  expressly  understood  and  agreed,  and 
those  presents  and  the  estate  thereby  granted,  were  upon  the 
express  condition,  that  if  at  any  time  thereafter  it  should  appear 
either  that  the  grantees  were  not  at  the  date  of  those  presents, 
seized  of  an  absolute  and  indefeasible  estate  of  inheritance  in  fee 
simple  in  the  premises  on  the  easterly  line  of  high-water,  and 
adjoining  the  land  conveyed  by  such  grant,  or  if  they  should 
make  any  default  in  the  performance  of  any  of  the  covenants, 
then  those  presents  and  everything  therein  contained  should  be 
null  and  void ;  the  grantors  and  their  successors  might  forthwith 
enter  upon  the  premises  thereby  granted,  and  should  thereafter 
be  seized  of  the  premises,  discharged  of  any  claim  of  the 
grantees. 

It  is  not  possible  by  any  forced  construction,  however  ingeni- 
ous, to  make  the  two  conditions  contained  in  such  a  clause,  so 
differ  in  their  character,  that  while  the  non-performance  of  the 
second  condition  in  relation  to  covenants  should  be  entirely  subse- 
quent, the  first  should  be  precedent  to  the  vesting  of  the  estate  ; 
such  a  construction  would  make  the  word  "  then"  not  refer  at  all  to 
that  first  condition,  while  it  would  render  all  the  subsequent 
clauses  of  annulling  the  deed,  right  of  re-entry,  and  re-seizing  inap- 
plicable and  unnecessary  to  cutting  off  the  grantees  from  any  rights 
so  far  as  such  first  conditions  was  concerned.  It  is  very  clear 
that  the  second  condition  was  a  subsequent  one,  because  it  con- 
sisted of  doing  something,  which  might  require  a  period  of  time 
in  which  to  be  completed,  and  the  payment  of  a  perpetual  rent. 
The  clause  of  re-entry  and  re-seizin  is  conclusive  upon  the  ques- 
tion of  an  intent  that  an  estate  should  vest,  since  otherwise 
they  would  be  wholly  unnecessary  (Rogan  v.  Walker,  1  Wise., 
133;  Phelps  v.  Chesson,  12  Ired.  Z.,  199).  As  the  two  con- 
ditions, with  the  clause,  which  details  the  consequences  of  their 
happening,  cannot  be  separated  in  character,  the  first  must  be 
a  condition  subsequent  as  well  as  the  second. 

But  the  words  used  expressly  make  the  first  condition  point 
not  to  an  existing  state  of  facts  alone,  but  to  something  future  : 
They  are,  "  If  at  any  time  hereof ter^  it  shall  appear  that  the 
grantees  were  not  at,"  &c.  Such  a  phrase  carries  the  reader  for- 


NEW  SEKIES ;  YOL.  I.  93 

Towle  v.  Palmer. 

ward  to  a  future  occurrence,  to  wit,  the  time  of  such  appearance, 
and  considers  him  as  looking  back  to  the  date  of  the  deed,  by 
the  past  tense  ("  were")  instead  of  the  present.  I  do  not  well 
understand  by  what  process  of  reasoning  such  words  can  be 
disregarded,  or  their  force  explained  awa}7,  unless  on  the  theory 
presently  to  be  noticed  and  already  alluded  to  that  such  grant 
or  conditions  subsequent  being  illegal,  it  is  to  be  presumed  that 
the  condition  could  not  be  construed  to  be  anything  but  prece- 
dent, whatever  words  were  employed. 

If  we  are  at  liberty  to  look  at  the  whole  scope  and  object  of 
the  deed  in  order  to  throw  light  upon  the  character  of  the  con- 
dition, they  plainly  show  an  intent,  on  the  part  of  the  grantees, 
to  acquiesce  in  that  intent.  The  former  covenanted  to  fill  the 
whole  premises  with  earth,  so  as  to  rise  above  the  water,  and 
surrender  part  of  that  so  filled  up  for  public  use.  Was  it  in- 
tended thereby,  that  the  supposed  owners  of  the  upland  should 
lie  by  and  seize  on  the  fruits  of  their  labor  and  expenditure, 
without  compensation,  leaving  the  grantees  liable  for  the  rent, 
which  was  part  of  the  consideration  for  the  conveyance.  This 
would  have  been  the  extreme  of  folly  on  the  part  of  the  grantees. 
As  it  was  the  interest  and  duty  of  the  grantors,  under  the  grant 
to  them  of  the  State,  to  have  such  covenants  performed,  they 
agreed  if  they  were  performed  by  others  to  allow  them  at  least 
to  reap  the  benefit  of  such  performance,  until  some  other  person 
should  make  his  prior  right  appear. 

The  argument  against  holding  such  condition  to  be  subsequent, 
seems  to  consist  of  the  following  propositions.  First,  That  the 
corporation  could  not  lawfully  convey  the  premises  to  any  one 
but  riparian  owners,  unless  the  latter  renounced  their  preemptive 
rights.  Second,  That  not  being  owners  with  full  powers  of  alien- 
ation to  all  persons  whatsoever,  they  were  not  the  only  persons 
interested  in  the  condition  in  question,  or  designed  to  be  pro- 
tected by  it.  Third,  That  the  riparian  owners  are  consequently 
not  to  be  considered  as  strangers  to  such  grant,  but  as  having  a 
legal  right  which  it  protects.  And  therefore  the  Clarke  grant 
should  be  construed  in  reference  to  such  duty  of  the  corporation 
to  such  riparian  owners.  The  whole  of  this  argument  evidently 
turns  on  the  assumption,  that  the  act  of  the  Legislature  of  1807, 
and  the  grant  in  pursuance  thereof  by  the  Commissioners  of  the 
Land  Office  by  forbidding  the  alienation  of  the  lands  thereby 
granted  to  any  one  except  the  riparian  owners  without  the  re- 


ABBOTTS'  PRACTICE  REPORTS. 


Towle  v.  Palmer. 


nunciation  by  the  latter  of  sucli  right,  conferred  on  such  owners 
vested  legal  rights,  to  be  protected  by,  and  capable  of  being  en- 
forced against  the  Corporation,  and  must  stand  or  fall  with  it. 
What  I  have  already  said  on  that  point  suffices  to  dispose  of  that 
assumption. 

But  it  is  said,  that  as  the  character  of  a  condition  depends, 
not  on  any  form  of  words,  but  the  intention  of  the  parties,  and 
as  the  Corporation  under  the  rules  of  construction  already 
alluded  to  must  be  presumed  to  have  intended  to  exercise  only 
its  legitimate  authority  and  to  protect  those  whom  it  was  its 
duty  to  protect,  viz. :  the  riparian  owners,  the  condition  in  ques- 
tion must,  if  possible,  be  interpreted  as  a  condition  precedent. 
It  is  further  contended  that  the  clause  immediately  preceding 
such  condition  by  which  the  meaning  and  intent  of  such  grant 
was  declared  to  be,  that  it  should  "  not  be  construed  to  oper- 
ate further  than  to  pass  the  title  or  interest  they  have  or  might 
claim  by  virtue  of  their  charters  and  various  acts  of  the  legis- 
lature of  this  Slate"  with  the  language  of  the  conditions  itself, 
which  follows  it  shows  a  purpose  not  to  interfere  with  or  prejudice 
any  preemptive  rights.  If  that  were  so  it  is  singular  that  no 
more  distinct  announcements  of  such  purpose  had  been  adopted. 
But  in  fact  the  purpose  of  such  preceding  clause  appears  to 
have  been  merely  for  abundant  cautiqn,  to  avoid  all  responsibility 
for  the  title,  and  not  to  protect  the  right  of  a  riparian  owner  who 
is  not  mentioned,  which  if  it  existed  could  not  be  taken  away 
against  his  consent.  That  right  would  prevail,  if  at  all,  with 
much  greater  force  against  the  grantees  than  the  grantors ;  and 
would  not  rely,  for  protection,  upon  a  condition  which  would 
merely  revest  the  title  in  the  grantors,  and  leave  the  riparian 
owners  to  enforce  their  right  as  they  best  might.  As  to  any  in- 
dication of  purpose  in  the  language  of  the  condition  itself,  that 
is  best  shown  by  its  legal  effect,  which  could  only  be,  in  any  case, 
to  divest  the  grantees  of  their  rights,  but  not  give  to  the  owner 
of  the  preemptive  right  any  additional  power.  In  addition  to  the 
positive  and  express  language  contained  in  such  clause  and  con- 
dition therefore,  I  cannot  perceive  a  clear  purpose  to  do  anything 
except  what  they  effect,  to  wit :  to  protect  the  grantors  against 
any  liability,  and  reserve  a  right  to  re-enter  upon  the  determina- 
tion of  such  condition.  No  court  is  at  liberty  to  overlook  the 
natural  meaning  of  language  used  by  the  parties,  in  the  instru- 
ment adopted  by  them  to  effectuate  their  intention,  for  the  pur- 


NEW  SERIES ;  VOL.  I.  95 

Towle  v.  Palmer. 

pose  of  so  modifying  it  as  to  comport  with  a  supposed  matter  of 
policy  or  even  duty. 

This  leads  me  to  the  third  proposition  already  referred  to  as 
one  of  the  foundations  ot  the  plaintiff's  right  to  recover,  to  wit : 
that  the  grant  by  the  Corporation,  to  the  parties  through  whom 
the  plaintiff  claims,  enabled  him  to  recover  against  the  defen- 
dants without  the  aid  of  any  proceedings  taken  by  the  Corpora- 
tion itself.  In  a  lease  for  years,  it  depends  upon  the  question 
whether  the  estate  was  made  absolutely  to  terminate  on  the  de- 
termination of  a  condition  subsequent  contained  in  it,  or  only  a 
right  of  re-entry  was  given,  as  in  the  former  case  it  would  cease 
at  once  (Parmelee  v.  Oswego  and  Syracuse  R.  R.  Co.,  6  N~.  Y.,  [2 
Seld.],  74 ;  S.  C.,  1  Barl.,  599  ;  Stuyvesant  v.  Davis,  9  Paige,  427). 
In  regard  to  a  conveyance  in  fee,  however,  the  happening  of  a 
condition  subsequent  would  not  absolutely  revest  the  title  in  the 
grantor.  Upon  its  determination,  the  interest  of  the  grantor  and 
his  representatives  becomes  a  mere  possibility  of  reverter,  inca- 
pable of  being  assigned  (Nicoll  v.  N.  Y.  and  Erie  R.  R.  Co.,  [ubi 
sup.]  ;  Phoenix  v.  Commrs.  of  Emigration,  12  How.  Pr.,  1).  Of 
course  if  the  condition  in  question  be  subsequent,  the  present 
plaintiff  cannot  take  advantage  of  it. 

The  very  result  last  mentioned  is  sought  to  be  availed  of  to 
fortify  the  argument  already  alluded  to,  founded  on  a  supposed 
duty  and  intention  of  the  corporation  in  the  reservations  in  the 
Clarke  grant ;  as  establishing  that  it  could  not  have  been  intended 
to  be  brought  about.  But  without  some  grant  under  which  the 
riparian  owners  could  claim,  they  were  powerless  to  overthrow 
the  Clarke  grant,  and  they  certainly  derived  no  new  powers 
from  it  or  anything  contained  in  it.  The  fact  that  they  are 
now  in  a  position  to  claim  some  rights  if  the  Clarke  grant  is 
held  for  naught,  by  virtue  of  a  grant  from  the  grantors  of  it, 
gives  color  to  the  idea  that  they  must  have  been  the  persons  in- 
tended to  have  the  benefit  of  the  condition  in  question,  but  that 
alone  could  not,  in  law,  give  them  a  positive  right  to  avail  them- 
selves of  such  a  reservation  when  not  mentioned  therein. 

If  any  argument  is  to  be  drawn  in  favor  of  either  view  of  the 
Statute  of  1807,  or  of  the  terms  of  the  Clarke  grant,  on  the 
ground  of  inconvenience  in  the  former  case  or  great  injustice  in 
the  latter,  it  is  in  favor  of  the  present  defendants.  If  the  stat- 
ute is  regarded  as  a  grant  of  a  right  to  riparian  owners,  cogniza- 
ble in  a  court  of  law,  and  no  grant  could  be  made  by  the  Cor- 


96       ABBOTTS'  PEACTICE  KEPORTS. 

Tcwle  v.  Palmer. 

poration  until  it  was  ascertained  who  those  owners  were,  or  if 
every  grantee  from  them  took  his  grant  subject  to  the  risk  of  a 
mistake  by  them,  it  is  very  evident  that  the  progress  of  filling 
up  and  making  streets,  which  is  declared  to  be  the  object  of  such 
statute  would  be  very  slow.  The  Corporation  is  not  endowed 
with  any  means  of  determining  the  ownership  of  the  upland? 
and  it  is  a  matter  of  every  day  experience  that  slight  matters, 
not  easily  noticeable  or  discoverable,  may  subvert  a  title.  In  the 
meantime  the  interests  of  the  city  of  New  York  must  suffer  from 
the  delay,  unless  the  Corporation  itself  should  enter  upon  the 
enormous  expense  of  filling  up  a  large  space  of  land  on  its 
borders  under  water.  If  the  Legislature  had  intended  the  ripa- 
rian owners  according  to  their  interest  to  acquire  forthwith  a 
right  to  the  land  under  water  they  would  have  granted  it  to 
them  directly.  But  their  legislation  was  conducted  in  such 
form  as  to  reserve  to  themselves  control  over  the  grant  in  case 
it  was  not  made  to  the  right  person.  It  was  not  to  be  supposed 
that  after  a  grantee  of  the  Corporation  had  expended  immense 
sums  of  money  in  filling  up  land  under  water,  under  a  pardon- 
able mistake  of  ownership,  they  would  be  so  unjust  as  to  wrest 
the  fruits  of  their  labor  and  expenditure  from  them  for  the  ben- 
efit of  any  one  who  might  turn  out  to  be  technically  the  true 
owners,  although  they  never  asserted  their  rights,  but  lay  by 
and  saw  the  improvement  advancing  without  notice  or  remon- 
strance. If  the  Clarke  grant  be  construed  to  invest  no  estate, 
unless  the  grantees  were  at  the  time,  upon  a  critical  examination, 
owners  of  the  upland,  it  would  be  a  snare  for  the  grantees  to  in- 
duce them,  in  the  expectation  of  acquiring  title,  to  incur  a  great 
expense  and  become  liable  for  the  payment  of  rent,  when 
the  Corporation  of  the  city  could  at  any  time,  without  no- 
tice to  them,  make  a  new  grant  to  a  newly-discovered  owner 
for  a  price  commensurate  with  the  enhanced  value  of  the  lands. 
It  would  work  injustice  to  the  grantees,  therefore,  if  the  condi- 
tion in  it  was  to  be  construed  as  being  precedent  and  not  subse- 
quent to  the  vesting  of  the  estate,  so  thereby  as  to  take  away 
all  opportunity  for  at  least  remonstrance  against  the  injustice 
of  taking  away  the  land. 

Unless  therefore,  the  statute  of  1807  is  to  be  construed  as  not 
merely  indicating  a  policy  on  the  part  of  the  State,  but  also,  as 
also  conferring  indefeasible  vested  rights  on  the  owners  of  all 
the  upland  adjoining  the  hind  directed  by  that  statute  to  lie 


NEW  SEEIES ;  VOL.  I.  97 

Towle  v.  Palmer. 

conveyed,  or  it  so  far  carries  out  such  policy  as  to  convert  the 
Corporation  of  New  York  into  trustees,  which  would  equally 
make  such  riparian  rights  vested,  and  the  grant  in  question 
whatever  its  language  may  be,  is  to  be  construed  simply  as  a 
means  to  preserve,  or  at  least  as  not  interfering  with  such  rights, 
the  defendants  are  entitled  to  judgment  in  their  favor.  For 
the  reasons  already  assigned,  I  cannot  consider  either  view 
sound  or  supported  by  anything  contained  in  the  statute  or  the 
grant 

I  do  not  very  clearly  see  how  any  question  of  adverse  posses- 
sion can  properly  arise  in  this  case.  Both  parties  claim  title 
under  grants  from  the  same  sources,  and  that  title  must  be  con- 
fined to  the  legal  effect  of  such  grants.  Possibly  a  question  of 
the  waiver  or  release  of  the  condition  in  the  grant  to  the  Cor- 
poration by  the  State,  or  by  the  Corporation  in  its  grant  to 
Mrs.  Clarke's  heirs,  might  arise  by  their  neglect  for  so  long  a 
time  to  enforce  it,  while  at  the  same  time  they  allowed  parties 
innocently,  and  in  good  faith,  to  incur  expense  in  making  land 
above  water  tinder  the  mistaken  belief  that  they  were  owners. 
It  could  hardly  be  the  law  that  long  after  the  riparian  owners 
had  lost  their  right  to  the  upland  by  adverse  possession,  grantees 
of  the  low  land  could  be  dispossessed  by  proving  that  they  had 
not  been  owners  of  the  former  at  the  time  of  the  grant. 

I  think,  therefore,  upon  the  grounds  that  the  Corporation  of 
the  City  could  make  the  grant  it  did  to- the  heirs  of  Mrs.  Clarke 
subject  only  to  be  divested  by  State  action,  and  that  such  Corpo- 
ration could  not  convey  any  rights  of  entry  for  any  determination 
of  the  condition  of  such  grant,  the  plaintiff  was  not  entitled  to 
recover,  and  the  defendants  are  entitled  to  a  new  trial  on  the 
usual  terms. 

The  judgment  should  therefore  be  reversed,  with  costs  to 
abide  the  event,  and  a  new  trial  had. 

BOSWOKTH,  C.  J. — The  record  of  the  judgment  in  Towle  v. 
Farney  was  received  in  evidence  against  the  objection  and 
exception  of  the  defendants.  It  was  not  objected  to  as  incom- 
petent, or  as  not  being  the  best  evidence  of  any  fact  which 
it  was  introduced  to  prove,  but  was  objected  to  "  as  irrele- 
vant." 

The  jury  were  instructed  that  in  determining  whether  Towle 
had  title  to  lots  Nos.  117  and  118,  they  must  decide  that  ques- 
N.  a— VOL.  I.— 7.  • 


ABBOTTS'  PRACTICE  REPORTS. 


Towle  v.  Palmer. 


tion  "  irrespective  of  any  decree  or  judgment  in  the  case  of 
Towle  u.Farney ;"  that  the  plaintiff  "  must  prove  his  title,  in 
this  suit,  to  the  lots  Nos.  117  and  118,  precisely  as  he  was  re- 
quired to  do  in  that  case  ;"  or,  in  other  words,  that  the  record 
in  Towle  v.  Farney  was  not  any  evidence  in  this  suit,  and  as 
against  the  present  defendants  of  the  plaintiff's  title  to  those 
lots. 

That  record  proves  the  fact  of  the  recovery  of  a  judgment 
establishing  the  plaintiffs  right  to  the  possession  of  lot  No.  118, 
in  a  suit  against  a  person  in  actual  possession  of  it.  The  fur- 
ther evidence  that,  in  execution  of  that  judgment,  the  plaintiff 
was  put  in  possession  of  this  lot  on  the  25th  of  October,  1856, 
establishes  the  further  fact  that  he  was  in  actual  possession  of 
this  lot,  by  the  judgment  of  a  competent  court,  over  three 
years  before  the  making  of  the  water  grant  to  him  of  the  date 
of  November  29,  1859. 

The  record  proved  the  fact  of  recovery  of  possession  by  the 
plaintiff,  in  an  action  commenced  in  December,  1849,  against 
the  persons  in  actual  possession  of  lot  No.  118,  and  determined 
his  right  to  it  and  his  pre-emptive  right  to  the  water  grant  as 
against  them.  And  the  verdict  of  the  jury  in  this  action  do 
termines  his  right  to  it  and  his  pre-emptive  right  to  the  water 
grant,  as  against  these  defendants. 

I  think  it  was  competent,  for  any  purpose  for  which  it  can  be 
seen  it  was  introduced  ;  and  if  it  was  competent  for  any  pur- 
pose, the  exception  is  clearly  untenable. 

But  if,  on  any  principle,  it  can  be  said  that  it  was  an  irrele- 
vant or  immaterial  fact  that  he  recovered  possession  by  such  a 
judgment  (which  we  do  not  concede,)  then  it  is  quite  clear  that 
the  introduction  of  it  could  not  possibly  have  prejudiced  the 
present  defendants,  upon  any  question  submitted  to  the  jury. 

The  observations  respecting  this  record,  are  applicable  to  the 
introduction  of  the  record  in  the  case  of  Towle  v.  Cortlandt 
Wood,  and  the  exception  taken  to  the  admission  of  the  latter. 

The  exception  to  the  charge,  in  respect  to  the  question  of 
adverse  possession  by  the  defendants,  is  untenable.  The  charge 
was,  that  if  the  defendants  and  those  under  whom  they  claim, 
took  possession  of  the  premises  in  question  under  the  grant 
made  to  them  in  183T,  "  by  commencing  to  fill  up  the  land 
immediately,  *  *  *  and  have  been  in  that  possession 


NEW.  SERIES  ;  VOL.  I.  99 


Towle  v.  Palmer. 


from  the  27th  of  February,  1840,"  the  defendants  were  entitled 
to  a  verdict. 

"  But  if  they  commenced  to  fill  up  in  1837,  and  ceased  or 
abandoned  the  work,  then  that  possession  would  not  be  such  as 
the  law  requires  to  give  them  title  by  reason  of  holding  ad- 
verse possession." 

The  point  of  this  branch  of  the  charge  is,  that  in  respect  to 
a  possession  alleged  to  consist  of  occupation,  in  filling  up  the 
premises,  it  ceases  when  the  process  of  filling  in  ceases  and  the 
work  of 'filling  in  is  abandoned.  In  this  there  is  no  error. 

The  words  "  and  ceased  or  abandoned  the  work,"  clearly 
mean  a  total  cessation  of  the  work  and  an  absolute  cessation  of 
that  kind  of  occupation  of  the  lot  of  which  the  Judge  speaks 
in  this  part  of  his  charge. 

All  other  of  the  exceptions  to  the  charge  are  disposed  of  by 
numerous  decisions  in  the  Court  of  last  resort,  save  the  excep- 
tion to  so  much  of  the  charge  as  states  that  the 'grant  of  the 
premises  in  question,  of  tlio  date  of  the  31st  of  March,  1837,  to 
the  heirs  of  Mary  Clarke  was  void,  and  vested  no  estate  in  them 
if  they  were  not  then  the  legal  owners  of  the  lots  Nos.  117  and 
118. 

The  grant  itself  declares  that  it  is  made  "upon  this  express 
condition,  that  if  at  any  time  hereafter  it  shall  appear  that  the 
said  parties  of  the  second  part  (such  grantees)  were  not,  at  the 
date  of  these  presents,  seized  of  a  good,  sure,  absolute  and  in- 
defeasable  estate  of  inheritance  in  fee  simple,  of,  in  and  to  the 
lands  and  premises  on  the  easterly  side  of  the  line  of  high 
water,  and  adjoining  to  the  water  lot  and  ground  under  water 
hereby  conveyed  or  intended  so  to  be,  *  *  *  then  *  *  * 
these  presents,  and  every  article,  clause  and  thing  herein  con- 
tained, shall  be  absolutely  null  and  void." 

They  were  not  then,  have  not  been  since  then,  and  are  not 
now,  the  owners  of  the  lots  Nos.  117  and  118,  nor  had  they 
then  any  interest  or  estate  therein.  But  the  title  to  them  was 
then  in  this  plaintiff's  grantors. 

A  grant  of  the  premises  in  question  was  made  to  the  plain- 
tiff, as  owner  (he  then  being  the  owner  and  in  actual  posses- 
sion) of  lots  117  and  118,  on  the  29th  of  November,  1859  ;  and 
if  the  grant  to  the  heirs  of  Mary  Clarke  shall  have  'no  greater 
effect  given  to  it  than  the  grant  itself  declares  shall  be  given  to 


100  ABBOTTS'  PKAGTICE  REPORTS.  % 

Towle  v.  Palmer. 

it,  then  it  is  no  obstacle  to  a  recovery  by  the  plaintiff  in  this  ac- 
tion. 

Assuming  the  verdict  in  this  action  to  have  been  rendered 
upon  competent  evidence,  and  that  all  the  exceptions  taken  by 
the  defendants,  saving  the  one  now  under  consideration,  are 
untenable,  it  would  seem  to  follow  that  the  plaintiff's  right  to 
recover  the  premises  in  question  is  as  perfect  and  absolute 
(looking  only  to  the  substantial  rights  of  the  parties)  as  it 
would  be  if  the  grant  to  the  heirs  of  Mary  Clarke  did  not 
embrace  the  premises  subsequently  granted  to  the  plaintiff  by 
the  grant  of  November  29,  1859. 

The  Corporation,  in  making  grant  of  land  under  water, 
covering  and  contiguous  to  the  premises  in  question,  conveyed 
by  lines  running  easterly  and  westerly  parallel  with  25th  and 
26th  Streets.  This  is  true  of  all  grants  given  in  evidence.  The 
Corporation  may  properly  so  grant,  and  the  owners  of  the  up- 
land cannot  object  thereto  (Nott  v.  Thayer,  2  J3osw.,  10). 

It  may  be  trne  that  the  Corporation  is  the  owner  of  the 
land  between  25th  and  26th  Streets,  on  the  Hudson  River,  be- 
tween high  and  low  water  mark,  and  as  such,  might  have 
given  title  thereto  to  any  one  purchasing  prior  to  the  Act  of 
February  25th,  1826,  and  perhaps  subsequently  thereto  (Fur- 
man  v.  The  Mayor,  &c.,  5  Sand/.,  It) ;  S.  C.,  6  Seld.,  567) ;  and 
yet  it  will  not  follow  that  the  owners  of  the  upland  are  .not 
absolutely  entitled  to  a  pre-emptive  right  to  a  grant  of  the 
land  under  water  to  which  that  Act  relates,  to  the  exclusion 
of  the  Corportion  or  of  its  grantee  of  the  land  between  high 
and  low  water  mark,  where  such  a  grant  had  been  or  is  about 
to  be  made. 

That  statute  directs  the  commissioners  of  the  land  office  to 
issue  letters  patent  granting  to  the  Mayor,  &c.,  the  lands  un- 
der water,  "  at  and  from  low  water  mark,  and  running  four 
hundred  feet  into  the  said  river"  (the  Hudson  River)  "  from  a 
point  on  the  easterly  shore  of  said  river,  four  milos  north  from 
Bestaver's  Killetje,  *  *  *  to  Spuyten  Duyvel's  Creek," 
(Davies*  Laws  of  N.  Y.,  675,  676)  and  impresses  upon,  and 
subjects  the  letters  patent  and  the  grant  tnereby,  to  the  pro- 
vision, "  that  the  proprietor  or  proprietors  of  the  lands  adja- 
cent, shall  have  the  pre-emptive  right,  in  all  grants  made  by 
the  Corporation  of  the  said  city,  of  any  lands  under  water, 
granted  to  the  said  Corporation  by  this  Act." 


NEW  SERIES ;   VOL.  I.  101 

Towle  v.  Palmer. 

It  is  the  obvious  purpose  of  this  statute,  to  secure  to  owners 
of  the  upland,  to  the  exclusion  of  the  Corporation  as  owner  of 
the  space  hetween  high  and  low  water  mark,  a  pre-emption 
right  to  the  lands  under  water  to  which  that  act  relates,  in  the 
event  of  the  Corporation  making  grants  of  the  same. 

The  Act  of  April  3, 1S07  (Davies'  laws  of  N.  Y.,  434,  §  15), 
irripresses  the  same  condition  and  right  upon  all  the  lands  un- 
der water  to  which  that  Act  relates,  and  that  covers  the  space 
between  Bestaver's  Killetje  and  a  point  four  miles  north  there- 
of, and  between  low  water  mark  and  a  line  extending  four 
hundred  feet  into  the  Hudson  River. 

Tlie  Act  of  April  12,  1837  (Davies'  Laws,  799),  vests  in  the 
Mayor,  &c.,  of  New  York,  title  to  the  lands  in  the  Hudson 
River,  between  Hammond  and  135th  Streets,  extending  west- 
erly from  the  line  of  the  former  grants,  to  the  westerly  side  of 
13th  A ve:i ne,  as  regulated  fe^»fchat  Act.  That  Act  gives  to 
the  proprietors  of  grants  theretofore  made  by  the  Corporation, 
of  lands  within  the  four  hundred  feet,  the  pre-emptive  right  in 
all  grants,  of  any  lands  under  water,  granted  to  the  Corpor- 
ation by  the  Act  of  April  12,  1837,  "adjacent  to  and  in  front 
of  the  lands  under  water  so  heretofore  granted ;"  and  it  also 
secures  to  "  the  proprietors  of  lands  having  a  pre-emptive  right 
to  grants  of  lands  under  water  by  virtue  of  the  said  Act,"  (of 
February  25,  1826),  "  the  same  pre-emptive  right  in  all  grants 
made  by  the  said  Mayor,  Aldermen  and  Commonalty  of  the 
City  of  New  York,  of  any  lands  under  water  granted  to  them 
by  this  Act,  (viz.,  the  Act  of  April  12,  1837), 

The  obvious  meaning  of  these  statutes  is,  that  all  the  lands 
under  water  embraced  within  the  grants  authorized  by  them, 
shall  be  granted  (if  any  grants  be  made  thereof)  to  the  propri- 
etor or  proprietors  of  the  land  adjacent ;"  that  is,  to  the  pro- 
prietors of  the  adjacent  uplands,  and  not  be  vested  indefeasi- 
bly  in  the  Corporation  as  owners  of  the  land  between  high 
and  low  water  mark  where  it  had- made  no  conveyance  of  the 
same,  or  in  its  grantees  of  such  tide  way  where  it  had  granted 
the  same  to  persons  not  proprietors  of  the  adjacent  uplands, 
if  any  such  grants  had  been  made. 

It  could  not  have  been  the  intent,  nor,  is  it  an  equitable  or 
necessary  construction  of  the  Act  of  April,  12,  1837,  to  require 
a  grant  of  the  land  under  water  conveyed  by  this  Act  to  any 
person  who  might,  by  misrepresentation  in  regard  to  his 


102  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

title  to  adjacent  upland,  or  by  reason  of  the  mistake  of  the 
Corporation  in  that  behalf,  have  obtained,  prior  to  April  12, 
1837,  a  grant  of  land  under  water  to  the  outer  line  of  the  four 
hundred  feet  first  granted. 

The  phrase,  "  the  proprietor  or  proprietors  of  the  adjacent 
lands,"  is  found  in  the  Act  of  May  5th,  1T86,  (1  Yol.  Laws  of 
N.  T.,  Greenleaf  sEd.,  284,  §  18)  and  in  the  Act  of  April  6, 1813, 
(1  R.  S.,  293,-§  14).  While  in  1  R.  S.,  '208,  §  77,  (Sec.  67)  the  more 
brief  expre-sion,  "  the  proprietor  of  the  adjacent  lands,"  is  em- 
ployed. In  all  of  these  statutes,  and  in  those  of  April  3,  1807 ; 
February  25,  1826,  and  April  12,  1837,  -which  use  the  words 
"  the  proprietor  or  proprietors  of  the  land  adjacent,"  the  pro- 
prietors spoken  of  are  the  persons  owning  the  upland  adjacent. 

The  Revised  Statutes  (1  R.  S.,  208,  supra),  not  only  prohibit 
the  making  of  a  grant  "  to  any  person  other  than  the  proprietor 
of  the  adjacent  lands,"  but  declares  that  every  such  grant  that 
shall  be  made  to  any  other  person  shall  be  void.  This  provi- 
sion of  the  Revised  Statutes  was,  perhaps,  enacted  to  save  the 
necessity  of  bringing  a  scire  facias,  or  proceedings  by  bill  in 
chancery,  or  by  information,  where  a  second  patentee  found 
that  by  mistake  or  misrepresentation  a  prior  patent  had  been 
issued  to  one  not  entitled  to  it,  in  order  to  procure  it  to  be  va- 
cated (Jackson  v.  Lawton,  10  Johns.,  23  ;  Jackson  v.  Hart,  12 
Johns.,  77). 

The  decisions  in  these  two  cases  proceed  on  the  principle  that 
letters  patent  are  matters  of  record,  and  cannot  be  impeached 
collaterally.  The  Courts  say  that  "  unless  letters  patent  are 
absolutely  void  on  the  face  of  them,  or  the  issuing  of  them  was 
without  authority  or  was  prohibited  by  statute,  they  can  only 
be  avoided  in  a  regular  course  of  pleading,  in  which  the  fraud, 
irregularity  or  mistake,  is  directly  put  in  issue"  (10  Johns.,  26  ; 
The  People,  &c.  v.  Mauran,  5  Den.,  389 ;  Williams  v.  Sheldon, , 
10  Wend.,  654,  and  Jackson  v.  Marsh,  6  Cow.,  281,  were  decid- 
ed on  that  principle). 

The  water  grants  made  by  the  Corporation  of  the  city  of  New 
York,  are  not  "  matters  of  record"  in  any  such  sense  as  letters 
patent,  issued  by  the  State,  are.  The  grant  containing  the  con- 
dition in  question,  is  by  an  ordinary  deed  of  conveyance. 

The  object  of  the  declaration  in  the  water  grant,  that  "  these 
presents  and  the  estate  hereby  granted,  are  upon  this  express 
condition,"  *****  that  "  these  presents  and  every  article, 


NEW  SEEIES;  YOL.  I.  103 

TWle  v.  Palmer. 

clause,  and  thing  herein  contained  shall  be  absolutely  null  and 
void,"  if  it  shall  at  any  time  appear  that  the  grantees  were  not 
the  proprietors  of  the  adjoining  land  on  the  easterly  line  of  high 
water  mark,  was  probably  the  same  as  that  of  the  clause  of  the 
Revised  Statutes,  which  declares  that  a  patent  issued  to  a  person 
not  entitled  to  it,  shall  be  void. 

The  object  and  design  were,  that  the  actual  owner  of  the  ad- 
jacent land  who  had  obtained  a  second  water  grant,  might,  in 
the  suit  in  which  he- established  his  title  to  the  adjacent  upland, 
and  consequently  to  such  a  grant,  recover  from  a  prior  grantee 
of  the  land  under  water,  whose  grant,  by  its  own  terms,  was  ab- 
solutely void,  without  instituting  a  suit  for  the  single  and  sole 
purpose  of  avoiding  such  prior  grant. 

No  cases  have  been  cited  which  require  the  Court  to  give  to 
the  water  grant  made  to  the  heirs  of  Mary  Clarke  any  force  and 
effect ;  as  the  grant  itself  declares,  that  on  the  facts  appearing 
which  are  established  on  this  trial,  it  shall  be  absolutely  null  and 
void. 

I  conclude,  therefore,  that  if  there  be  no  obstacle  to  the  plain- 
tiff's recovery  except  the  fact  of  this  prior  grant,  the  judgment 
should  be  affirmed. 

The  fact  that  the  water  grant  also  declares  that  it  shall  be 
null  and  void,  for  the  further  cause  that  the  grantees  make  de- 
fault in  the  performance  of  any  of  the  covenants  on  their  part 
therein  contained,  and  the  parties  of  the  first  part  may  forthwith 
enter  upon  the  premises,  and  shall  thereafter  be  seized  of  the 
same,  discharged  of  any  claim  of  the  grantees,  does  not  militate 
against  this  view. 

It  would  be  just,  and  but  a  proper  precaution,  to  provide 
for  the  right  of  re-entry  in  case  of  a  failure  by  them  to  per- 
form their  covenants. 

The  Corporation  thereby  resumed  the  power,  in  case  the 
grantees  had,  by  mistake,  obtained  a  grant,  when  the  right  to 
it  was  in  others,  to  repossess  itself  of  the  granted  property, 
and  thus  be  in  a  condition  to  perform  its  duty  to  the  owner  of 
the  a  jacent  upland,  and  prevent  his  right  being  barred  by 
adverse  possession,  if  perchance  it  could  be  thus  burred. 

It  is  only  on  the  ground  that  the  heirs  of  Mary  Clarke  were 
supposed  to  be,  u  seized  of  a  good,  sure,  absolute  and  indefeas- 
ible estate  of  inheritance  in  fee  simple  of,  in,  and  to  the  lands 
and  premises  on  the  easterly  line  of  high  water  and  adjoining 


104  ABBOTTS'  PRACTICE  REPORTS. 

Towle  t>.  Palmer. 

to  the  water  lot  and  ground  under  water,"  conveyed  by  the 
grant  of  the  31st  of  March,  1837,  that  such  grant  was  made. 
It  declares  that  it  was  made  and  granted  upon  the  expressed 
condition  that  it  should  •' be  absolutely  null  and  void"  if  it 
should  appear  that  they  were  not  so  seized. 

Instead  of  their  being  so  seized,  the  plaintiff's  grantors  had 
such  title.  The  plaintiff  \vas  litigating  the  question  of  title  to 
the  adjacent  uplands  from  December,  1849,  to  the  25th  of  Oc- 
tober, 1856,  with  the  tenants  of  the  heirs  of  Mary  Clarke,  who 
were  in  actual  possession  ;  and  having  established  his  title,  as 
against  them,  a  water  grant  of  land  under  water,  parallel  with 
25th  Street,  arid  of  even  width  with  his  adjacent  upland,  was 
iL'ade  to  him  on  the  29th  of  November,  J859. 

He  had  done  nothing  to  waive  or  forfeit  his  pre-emptive 
right  to  such  grant.  At  all  events,  there  is  no  evidence  tend- 
ing to  show  that  such  is  the  tact. 

The  premises  in  question  are  part  of  the  land  under  water, 
conveyed  by  said  grant. 

His  pre  emptive  right  is  absolute.  He  is  the  proprietor  of 
the  adjacent  upland,  and  as  such  proprietor  has  a  water  grant 
of  the  premises  in  question,  and  there  is  no  obstacle  to  his  re- 
covery in  this  suit  except  the  prior  grant  to  the  heirs  of  Mary 
Clarke,  and  that,  by  its  own  terms,  is  declared  to  be  absolme'y 
null  and  void  on  the  fact  appealing  which  has  been  established 
on  this  trial. 

This  pre  emptive  right  is  so  definite  and  absolute,  that 
Courts  will  protect  it  (Armour  v.  Alexander,  10  Paige,  571; 
Fiirman  v.  The  Mayor,  &c.,  5  Sandf.,  16). 

The  remarks-  of  the  Court  in  Lytle  v.  The  State  of  Arkansas, 
(9  How.  8.  Ci.j  314,)  in  relation  to  the  character  and  quality  of 
the  pre-emptive  right  asserted  in  that  case,  are  equally  pertinent 
to  the  pre-emptive  right  in  question.  The  Court  say :  "  The 
claim  of  a  pre-emption  is  not  that  shadowy  right  which,  by 
some,  it  is  considered  to  be.  Until  sanctioned  by  law,  it  has  no 
existence  as  a  substantive  right.  But  when  conveyed  by  the 
law,  it  becomes  a  legal  right,  subject  to  be  defeated  only  by  a 
failure  to  perform  the  conditions  annexed  to  it."  The  consider- 
ations of  public  policy  which  led  to  the  creation  of  the  pre-emp- 
tive rights  there  under  consideration,  are  not  the  same  as  those 
which  led  to  securing  in  the  case  before  us,  \>y>  positive  statute, 
"  the  pre-emptive  right  in  all  grants  made  by  the  Corporation 


NEW  SERIES ;  VOL.  I.  105 

Tovrle  v.  Palmer. 

of  the  said  City,  (New  York,)  of  any  lands  under  water,  granted 
to  the  said  Corporation  by  this  Act,"  (the  Act  of  February  25th, 
1826,)  to  "  the  proprietor  or  proprietors  of  the  lands  adjacent." 
But  the  latter  Act  is  founded  in  obvious  considerations  of  public 
justice  and  the  equities  of  the  individuals  owning  the  lands 
adjacent. 

The  words  of  the  statute  declaring  and  perfecting  these  rights, 
are  as  clear  and  peremptory  as  can  well  be  selected. 

It  was  not  intended  that  the  Corporation  should  have  the 
power  and  authority,  if  it  made  grants  of  these  lands,  to  .make 
them  to  any  one  except  the  proprietors  of  the  lands  adjacent, 
unless  the  latter  did  some  act  or  were  guilty  of  some  omission 
which  would  defeat  the  pre-emptive  right  thus  declared. 

And  every  person  taking  a  grant,  either  as  original  grantee 
or  assignee,  takes  it  with  notice  of  the  right  of  the  true 
proprietor  of  the  lands  adjacent  (Brush  v.  Ware,  15  Pet.  S. 
Ct.,  93.) 

These  views  will  aid  in  properly  determining  the  question, 
whether  t\\Q. condition  in  question  contained  in  the  grant  of  the 
31st  of  March,  1837,  shall  be  deemed  a  condition  precedent  or 
subsequent. 

There  are  many  cogent  considerations  why  the  condition  in 
question  should  be  treated  as  a  condition  precedent,  and  not  as 
a  condition  subsequent,  with  all  the  consequences  attaching  to 
the  application  of  the  technical  rules  of  that  branch  of  the  law, 
to  this  case. 

First.  It  is  held,  and  acted  on  as  a  basis  of  judicial  decision, 
that  there  are  no  technical  words  by  which  a  condition  prece- 
dent can  be  distinguished  from  a  condition  subsequent.  That 
whether  it  be  the  one  or  the  other  is  a  matter  of  construction, 
and  depends  upon  the  intention  of  the  party  creating  the  estate 
(Nicoll  v  N.  Y.  &  Erie  R.  R.  Co.,  12  'N.  T.  [2  £*r*&  121). 
That  conditions  subsequent  are  not  favored  in  the  law,  and  can 
only  be  reserved  for  the  benefit  of  the  grantor  and  his  heirs,  and 
no  other  can  take  advantage  of  a  breach  of  them.  (Id.,  131.) 
That  where  a  fee  simple,  without  a  reservation  of  rents,  is  granted, 
upon  a  condition  subsequent,  there  is  no  estate  remaining  in  the 
grantor ;  there  is  simply  a  possibility  of  reverter.  That  this  is 
not  an  estate,  but  a  bare  possibility,  which  will  not  in  equity 
even  give  an  assignee  of  it  a  right  to  the  interposition  of  a  Court 


106  ABBOTTS'  PEACTICE  KEPOKTS. 

To\vle  v.  Palmer. 

of  Equity,  to  divest  an  estate  for  the  breach  of  a  condition  sub- 
sequent. (7^.,  132.) 

Second.  The  Corporation  had  not  capacity  to  grant,  lawfully, 
in  fee  simple,  absolute,  the  premises  in  question,  to  any  persons 
except  the  owners  of  the  adjacent  upland,  unless  they  had  done 
some  act  to  waive  or  dispose  of  their  pre-emptive  right  to  the 
grant.  If  about  to  make  a  grant  to  persons  not  entitled,  the 
Corporation  would  be  restrained  by  injunction,  at  the  suit  of 
those  having  the  pre-emptive  right,  provided  the  latter  offered 
to  take  a  grant  on  terms  as  favorable  to  the  Corporation.  So, 
too,  if  the  Corporation  should  make  a  grant  to  persons  not  enti- 
tled, a  suit  might  be  brought  by  those  entitled,  against  the 
grantees  and  such  Corporation,  to  avoid  the  grant,  and  compel  a 
'grant  to  the  plaintiffs.  The  reasoning  of  the  Court  in  Furman 
v.  The  Mayor,  &c.,  5  Sandf.,  16,  and  Armour  v.  Alexander,  10 
Paige,  571,  fully  supports  these  views. 

The  Corporation  was  not,  therefore,  the  owner  of  the  premises 
granted,  in  fee  simple,  absolute.  They  held  them  in  trust,  in 
such  sense  that,  if  they  determined  to  grant  them,  the  owners  of 
the  adjacent  uplands  would  be  entitled  to  the  grant  if  they  de- 
sired it,  and  would  take  it  on  terms  as  favorable  -to  the  Corpora- 
tion as  others  would. 

Not  being  owners  in  fee  simple,  absolute,  they  and  their  suc- 
cessors are  not  alone  interested  in  the  condition  in  question,  nor 
are  they  the  only  persons,  or  in  fact  the  persons  who  should  be 
deemed  to  have  been  designed  to  be  protected  by  it. 

Tldrd.  Not  being  a  condition  which  can  be  deemed  to  have 
been  inserted  as  a  reservation  for  the  benefit  of  the  "grantor 
and  his  heirs,"  alone  or  primarily ;  the  plaintiif  and  his  grantors 
of  the  adjacent  upland,  are  not  to  be  regarded  as  strangers, 
having  no  interest  except  that  of  a  possibility  of  re  verier. 
They  had  a  pre-emptive  right  to  the  grant,  which  was  a  per- 
fect, legal  right,  and  have  done  nothing,  nor  omitted  to  do  any- 
thing, to  waive  or  forfeit  that  right. 

Fourth.  By  1  R.  £,  747,  §  23,  the  assignees  of  the  lessor  of 
any  demise,  have  the  same  remedy  "  by  entry,  action,  distress  or 
otherwise,  for  non-performamce  of  any  agreement  contained  in 
the  lease  so  assigned,  *  *  *  or  for  the  doing  of  any  waste 
or  other  cause  of  forfeiture  as  their  grantor  or  lessor  had  or 
might  have  had,  if  such  reversion  had  remained  in  such  lessor 
or  grantor."  And  by  §  25  (Id.),  the  provision  of  that  section  ex- 


NEW  SERIES;  VOL.  I.  107 

Towle  v.  Palmer. 

tends  "  as  well  to  grants  or  leases  in  fee  reserving  rents,  as  to 
leases  for  life  and  for  years." 

The  water  grant  to  the  defendant's  grantors,  of  the  thirty- 
first  of  March,  1837,  should  be  construed  in  view  of  the  position 
of  the  Corporation  to  the  premises  in  question,  of  its  duty  to 
owners  of  the  adjacent  upland,  and  of  the  right  of  the  latter. 

The  grant,  before  reaching  the  condition  in  question,  provides 
that  in  case  of  failure  to  pay  the  yearly  rents  reserved,  for  the 
space  of  thirty  days  after  any  rent  becomes  due,  the  Corporation 
inay  re-enter,  &c.  Next  following  this  provision,  are  other  cove- 
nants, occupying  some  eight  folios,  and  then  come  these  clauses, 
viz. :  "  And  it  is  hereby  further  covenanted  and  agreed,  by  and 
between  the  parties  to  these  presents,  and  the  true  intent  and 
meaning  is  hereby  declared  to  be,  that  this  present  grant  shall 
not  be  deemed,  construed  or  taken  *  *  *  to  operate  further 
than  to  pass  the  estate,  right,  title  or  interest  they  have  or  may 
lawfully  claim  by  virtue  of  their  several  charters  and  the  various 
Acts  of  the  Legislature  of  the  People  of  the  State  of  New  Ywk  • 
and  it  is  further  expressly  understood  and  agreed,  and  these  pre- 
sents and  estate  hereby  granted,  are  upon  'this  express  condition, 
that  if  at  any  time  hereafter  it  shall  appear  that  the  said  parties 
of  the  second  part,  were  not,  at  the  date  of  these  presents,  seized  of  a 
good,  sure,  absolute  and  indefeasable  estate  of  inheritance,  in  fee 
simple  of,  in  and  to  the  lands  and  premises  on  the  easterly,  side 
of  the  Una  of  high  water  mark  and  adjoining  to  the  water  lot  and 
ground  under  water  hereby  conveyed,  *  *  then  *  *  these 
presents,  and  every  article,  clause  and  thing  herein  contained, 
shall,  be  absolutely  null  and  void? 

These  provisions  indicate  a  clear  intent  not  to  make  any  grant 
which  could  in  any  way  interfere  with  the  pre-emptive  right  of 
the  true  owner  of  the  adjacent  upland  to  a  water  grant.  It  is  a 
clear  declaration  of  an  intent  not  to  transfer,  or  to  be  deemed  to 
have  attempted  to  transfer  any  estate  in  the  premises  purporting 
to  be  conveyed,  unless  the  grantees  were  at  that  time  absolute 
owners,  in  fee  simple,  of  the  adjacent  upland. 

All  the  covenants  in  this  grant,  on  the  part  of  the  grantees  i» 
were  no  more  or  less  valuable  to  the  Corporation,  whether  the 
grantees  were  6r  were  not  such  owners.  And  that  condition  was 
manifestly  inserted,  not  for  the  benefit  of  the  Corporation,  the 
grantor,  but  for  the  benefit  of  the  actual  owners  of  the  adjacent 
upland,  and  that  the  grant  might  not  be  an  obstacle  to  making 


108  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

an  operative,  valid  grant  to  such  true  owners,  whenever  it  ap- 
peared that  the  grantees  were  not  the  true  owners. 

In  any  other  view  it  is  puerile.  The  Corporation  had  no 
pecuniary  or  proprietary  interest  to  be  protected  by  it.  But 
it  owed  a  duty  to  the  true  owner  of  the  adjacent  upland,  who- 
ever he  might  be,  and  that  duty  it  designed  to  perform  faith- 
fully. 

Treated  as  a  condition  subsequent,  there  is  no  act  or  duty  de- 
volved upon  or  stipulated  for  by  the  grantees ;  the  non-perform- 
ance or  non-observance  of  which  is  to  be  a  cause  of  forfeiture. 

There  is  no  event  to  happen  mfaturo,  the  happening  of  which 
is  to  be  a  cause  of  forfeiture. 

The  good  sense  of  the  condition  is,  that  if  the  grantees  do  not 
then  own  the  adjacent  upland,  they  take  no  estate  ;  and  when- 
ever it  appears  they  were  not  the  owners,  the  Corporation  is  at 
liberty  to  say  that  the  water  grant,  the  instrument  itself,  and  all 
its  provisions,  were  "  absolutely  null  and  void  "  from  its  date. 

It  did  appear  satisfactorily  to  the  Corporation  on  the  27th  of 
October,  1859,  and  such  was  the  actual  fact,  that  the  heirs  of 
Mary  Clarke  were  not  the  owners  of  the  adjacent  upland,  and 
that  this  plaintiff  was ;  and  in  a  water  grant  of  that  date,  the 
Corporation  granted  the  premises  to  the  plaintiff,  as  the  person 
entitled  to  such  grant,  and  the  grant  recites  these  facts. 

If  the  intent  of  the  grantors,  as  clearly  manifested  by  the  grant 
itself,  is  to  determine  whether  the  condition  is  to  be  treated  as 
precedent  or  subsequent,  then  it  should  be  held  a  condition 
precedent. 

It-  is  a  condition  which  they  could  not  lawfully  discharge  -and 
release. 

The  conclusion  is  not  weakened  by  the  fact  that  the  grant 
also  declares  that  if  the  grantees  make  default  in  any  of  their 
covenants,  the  same  consequences  shall  follow,  and  that  the 
grantors  and  their  successors  may  .re-enter. 

That  provision  is  an  apt  and  proper  one  to  meet  the  case  of  a 
default  on  the  part  of  the  grantees  to  perform  their  covenants, 
and  has  full  force  in  being  applied  to  such  a  case.  It  would 
violate  the  clear  intent,  otherwise  expressed,  to  hold  that  a  re- 
entry, or  its  statutory  substitute,  was  designed  to  be  the  only 
remedy  left  to  the  Corporation  or  the  owners  of  the  adjacent 
upland  in  case  it  was  ascertained  to  be  true  in  fact  that  the 
grantees  did  not  own  the  adjacent  upland. 


NEW  SERIES;  VOL.  I.  109 


Towle  v.  Palmer. 


Nor  does  this  view  interpose  any  difficulties  in  the  way  of  the 
Corporation,  in  extending  the  exterior  lines  of  the  city,  and 
building  new  streets,  piers,  or  bulkheads. 

It  can  cut  off  the  pre-emptive  right  of  any  adjacent  upland 
owner,  by  giving  notice  of  an  intent  to  make  water  grants  and 
inviting  bidders.  If  he  declines  to  take  a  grant  on  the  condition 
that  no  estate  passes  if  he  be  not  the  owner  of  the  adjacent 
upland,  and  obtains  one  on  such  terms,  he  has  no  ground  of  com- 
plaint legal  or  equitable,  because  he  has  run  the  risk  of  making 
large  outlays  on  the  premises.  It  is  a  matter  of  judicial  history 
that  for  more  than  forty  years  there  has  been  a  succession  of  suits 
between  the  devisees  of  Mary  Clarke  and  purchasers  claiming 
title  under  acts  of  the  Legislature  of  this  State,  and  proceedings 
thereunder,  in  respect  to  the  title  of  lots  belonging  to  the  estate, 
which  is  the  upland  adjacent  to  the  premises  in  question  (Sin- 
clair v.  Jackson,  8  Cow.,  543  ;  Cochran  v.  Yan  Surlay,  20  Wend.,  ' 
365  ;  Towle  v.  Forney,  14  N.  Y.  [4  j&rn.],  423 ;  Williamson  v. 
Berry,  8  How.  S.  CL,  495  ;  Williamson  v.  Suydam,  24  Huw.  S. 
Ct.,  427). 

So  far  as  the  reported  cases  speak  on  the  subject,  the  devisees 
of  Marv  Clarke  and  those  to  whose  rights  the  grantees  in  the 

«/  o  o 

grant  of  the  31st  of  March,  1837,  have  succeeded  had  been 
defeated.  I  do  not,  on  this  account,  question  the  good  faith  of 
such  grantees  on  applying  for  and  obtaining  that  grant.  Their 
good  faith  does  not  enter  into  the  controversy. 

But  matters  as  notorious  as  it  may.  be  presumed  the  fact 
and  result  of  these  litigations  were,  from  the  history  of  them 
found  in  the  reports  of  the  different  courts,  might  properly 
predispose  the  Corporation,  in  making  the  grant  in  question, 
to  declare  in  it  a  clear  intent,  and  insert  in  it  a  condition,  that 
no  estate  should  be  transferred  if  the  grantees  were  not  at  the 
date  of  the  grant  the  owners  of  the  upland. 

I  think  the  condition  in  question  was  inserted  to  declare 
and  effectuate  such  an  intent,  and  that  this  is  apparent  from 
the  grant  itself. 

The  grantees  by  virtue  of  their  grant  obtained  a  license  to 
enter  and  enjoy  the  premises  unmolested  by  'the  Corporation, 
eo  long  as  they  perform  the  covenants  on  their  part,  and  no 
one  appeared  claiming  to  be  the  true  owner  of  the  adjacent 
upland. 

When  such  a  claimant  appeared,  and  was  what  he  claimed 


110  ABBOTTS'  PRACTICE  REPORTS. 

Towle  v.  Palmer. 

to  be,  the  Corporation  had  the  right  and  it  was  its  duty  to 
make  a  grant  to  him. 

And  where,  in  a  suit  properly  brought  by  him  to  recover 
possession,  he  establishes  his  ownership  of  the  adjacent  upland, 
the  grant  in  question  should  not  be  held  to  be  an  obstacle  to 
a  recovery.  The  defendants  are  not  in  a  position  to  claim 
that  the  grant  to  the  heirs  of  Mary  Clarke  vested  any  title  to 
the  premises  in  question,  in  the  grantees  named  in  it. 

Such  a- construction  is  adapted  to  subserve  the  ends  of  jus- 
tice, and  accords  with  the  intent  of  the  grantor  in  inserting 
the  condition  in  question,  as  manifested  by  the  grant  itself, 
and  all  surrounding  facts  to  which  its  recitals  clearly  point. 

If  the  defendants  had  any  equities  based  on  the  good  faith 
and  acts  of  the  grantees  in  the  grant  of  March  31,  1837,  they 
could  have  been  alleged  and  protected  in  this  action  (Phillips 
v.  Gorham,  'VI  N.  Y.,  270). 

The  complaint  in  this  action,  in  its  third  acticle,  alleges  that 
the  defendant?  pretend  to  claim  some  right  to  the  premises  in 
question,  that  this  claim  is  unlawful,  and  that  defendants' 
claim  to  the  lot  and  their  possession  thereof  is  fraudulent  and 
void  as  against  the  plaintiff. 

Without  requiring  any  allegations  of  the  complaint  to  be 
made  more  definite  and  certain,  as  provided  by  §  160  of  the 
Code,  the  parties  have  tried  the  cause  upon  its  whole  merits, 
without  any  objection  thereto  that  I  have  discovered,  and  un- 
less the  plaintiff  must  bring  two  suits  instead  of  one,  and  try 
them  separately,  it  would  seem  that  his  right  to  the  premises 
in  question  has  been  fully  established,  and  the  judgment  ren- 
dered should  not  be  disturbed. 

I  have  already  considered  the  exceptions  to  that  part  of  the 
charge  relating  to  the  question  of  adverse  possession.  In  doing 
.BO,  no  doubt  was  suggested  whether  the  case  raised  any  such 
question  for  the  consideration  of  tthe  jury. 

I  think  it  by  no  means  clear,  that  any  such  question  can  be 
raised  in  this  case,  and  if  it  cannot  be,  the  charge  in  that  be- 
half is  immaterial,  as  the  plaintiff  recovered  on  proof  of  his  title 
to  the  upland,  arid  of  his  pre-emptive  right  to  the  water  grant 
which  has  been  executed  to  him. 

By  the  terms  of  the  grant  in  question,  the  grantees  agreed  • 
that  if  they  were  not  at  its  date  the  owners  of  the  adjacent 
upland  in  fee  simple  absolute,  •  the  grant  should  be  absolutely 


NEW  SEEIES;  VOL.  I.  Ill 

Towle  v.  Palmer. 

null  and  void.  They  entered  under  a  grant  containing  such 
an  agreement  on  their  part.  Their  possession  has  been  quali- 
fied by  it,  and  subordinated  to  it. 

It  is  not  adverse  to  the  Corporation  in  respect,  to  the  ques- 
tion of  title  to  the  premises  granted.  Their  possession  has 
been  under  the  grant,  with  no  claim,  of  title  which  is  not  qual- 
ified by  these  provisions. 

The  defendants  and  their  grantors  have  occupied  under  a 
grant  which  declares,  aiid  in  which  they  agree  that. their  occu- 
pation shall  be  deemed  to  be  without  title  or  right  to  claim 
any  title,  if  the  gfantees  were  not,  at  the  date  of  the  grant, 
the  owners  of  the  adjacent  upland.  They  were  not  such 
owners.  Their  occupation,  therefore,  has  not  been  hostile  or 
adverse  'either  to  the  City  Corporation  or  their  quasi  cestuis 
que  trust,  the  actual  owners  of  the  adjacent  upland. 

Where  it  appears  that  the  title  claimed  is  subservient  to, 
and  admits  the  existence  of  a  higher  title,  the  possession  is  not 
adverse  (Jackson  v.  Johnson,  5  Cow.,  74).  The  claim  of 
title  on  the  part  of  the  defendants  and  their  grantors,  is  under 
and  according  to  the  grant.  By  the  very  terms  of  the  grant 
and  the  agreement  in  it  qualifying  the  defendants'  possession, 
the  Corporation  might  re-enter  after  the  lapse  of  thirty  years, 
as  well  as  at  the  end  of  ten  years,  on  its  appearing,  or  proof 
being  made,  that  the  grantees  in  the  grant  of  March  31,  1837, 
had  no  title  then  to  the  adjacent  upland. 

It  is  impossible  that  the  possession  can  be  deemed  to  be  ad 
verse,  in  its  commencement,  to  the  Corporation,  in  such  sense 
that  twenty  years'  continuance,  of  it  would  defeat  this  -c'on- 
dition  of  the  grant  and  convert  the  defendants'  title  into  a  fee. 
A  possession,  to  be  adverse,  must  be  accompanied  with  a 
claim  of  the  entire  title,  free  from  all  conditions  and  limita- 
tions (Jackson  v.  Hill,  5  Wend.,  532 ;  Livingston  v.  Peru 
Iron  Co.,  9-  Wend.,  511 ;  Thompson  v.  The  Mayor,  &c.,  11  N. 
Y.  [1  Kern.']  115  ;  Hoyt  v.  Dillon,  19  Barb.,  644 ;  Butler  v. 
Phelps,  17  Wend.,  642 ;  Burhans  v.  Van  Zandt,  7  N.  Y. 
[3  Seld.},  523). 

If  the  condition  in  question  was  clearly  intended    by  the 

grantor  as  a  condition  precedent,  and  if  this  is  manifest  from  the 

.terms  of  the  grant  and  notorious  surrounding  circumstances, 

then  it  follows  that  the  defendants  took  possession,  and  have  at 

all  times  occupied  under  an  agreement  that  they  should  not  be 


112  ABBOTTS'  PRACTICE  REPORTS. 

Botsford  v.  Krake. 

deemed  to  have  acquired  or  have  any  title,  if  they  did  not  own 
the  upland.  They  did  not  then  own,  and  have  not  since  then 
owned  the  adjacent  upland.  I  think,  therefore,  that  their  pos- 
session cannot  be  treated  as  adverse,  within  the  rules  applicable 
to  that  subject. 

If  these  views  are  correct,  the  judgment  should  be  affirmed. 
If  they  are  untenable,  it  will  follow  that  these  pre-emptive  rights 
specially  protected  as  they  are  by  statute,  and  notwithstanding 
the  apparent  effort  of  the  Corporation  to  do  nothing  to  prejudice 
or  affect  them,  are  destitute  of  substance,  and  cannot  be  enjoyed 
as  a  matter  of  right  by  those  to  whom  the  law  declares  they 
belong. 

I  think  the  judgment  should  be  affirmed. 

Judgment  reversed,  with  costs  to  abide  the  event,  and  a  new 
trial  ordered. 


BOTSFORD  against  KKAKE. 
Surrogate's  Court,  Otsego  County  •  February  y  1866. 

WILL. — NUNCUPATIVE  WILL. 

An  officer  in  the  army  of  the  United  States  in  May,  1864,  after  it  had  com- 
menced to  move  on  Richmond,  wrote  and  sent  a  letter  to  his  sister  saying 
if  he  was  killed  or  did  not  return,  he  wanted  her  to 'have  his  property. 
He  was  killed  in  August,  1864; — Held,  that  this  portion  of  the  letter  was 
a  valid  will  by  a  soldier,  and  should  be  admitted  to  probate  as  such. 

"Whether  a  testamentary  declaration  made  by  a  soldier,  in  actual  military 
service,  is  valid  as  a  will,  although  not  made  in  sickness  or  peril  of  im. 
.mediate  death — Query? 

Probate  of  a  will. 

Barnard  Phenis,  the  deceased,  was  a  lieutenant  in  the  76th 
New  York  Volunteers,  in  the  army  of  the  United  States,  and  had 
been  a  soldier  from  June,  1862,  to  the  time  of  his  death,  which  • 
took  place  on  or  about  the  18th  day  of  August,  1864,  at  or  near 
the  Weldon  Rail  Road  in  Virginia.    He  died  from  a  wound 


NEW  SERIES ;  VOL.  I.  113 


Botsford  v.  Krake. 


received  in  battle  the  day  of  his  death.  At  the  time  of  his 
enlistment,  and  of  his  death,  he  was  an  inhabitant  of  the  town  oi 
Cherry  Valley  in  Otsego  county.  He  left  him  surviving  Mrs.  Jane 
Botsford,  a  sister,  Mrs.  Mary  McKellop,  a  sister,  and  Miss  Mary 
Krake,  a  daughter  of  a  deceased  sister,  his  next  of  kin.  In  May, 
1864,  after  our  army  had  moved  on  Richmond,  he  wrote  a  letter 
to  his  sister,  Mrs.  Botsford,  in  which  he  informed  her  that  his 
regiment  was  going  to  Richmond,  and  in  case  of  his  death,  he 
wanted  her  to  have  his  property.  On  the  day  of  his  death,  it 
appears  that  something  was  said  by  deceased,  or  by  his  nurses, 
and  attendants,  by  which  it  was  understood  that  deceased  de- 
sired said  Jane  Botsford  to  have  his  property.  He  was  com- 
petent, over  30  years  of  age,  and  left  personal  property.  Mrs. 
Botsford  propounded  this  letter,  and  the  declaration,  as  a  will. 

N.  C.  Modk,  for  respondent. — I.  It  should  be  borne  in  mind 
that  there  are  three  kinds  of  wills  known  to  the  law.  1.  A 
will  executed,  and  attested  with  all  the  formalities  required  by 
statute.  2.  A  holograph,  or  will  in  the  handwriting  of  the 
testator,  which,  although  not  witnessed  or  declared  to  be  wit- 
nessed to  be  his  will,  from  its  testamentary  character,  shows 
on  its  face  it  was  intended  as  a  will  in  case  of  death.  (  Wor- 
cester's Diet.,  Tit.  Holograph,  BurriWs  Law  Diet.,  same  Tit.}. 
And  it  may  be  a  deed,  a  letter  or  any  writing  in  the  testator's 
own  handwriting  evincing  a  desire  in  case  of  death,  to  dispose 
of  his  personal  property.  (Redfidd  on  Wills,  168, 169, 176,  542 ; 
1  Paige,  369,  370.)  3.  The  third  class  are  nuncupative,  or 
unwritten  wills.  These  are  simply  verbal  declarations  of  the 
testator,  showing  how  he  desired  his  property  disposed  of  in 
case  of  death.  ( Worcester's  Diet.,  Tit.  Nuncupative  ;  BurriWs 
Law  Diet.,  Tit.  Nuncupative;  1  Paige,  369,  370.) 

II.  In  consequence  of  a  frightfuLcase  of  perjury  in  England, 
nuncupative  wills  proper,  or  those  unwritten,  made  by  any  per- 
son except  he  le  a  soldier  or  sailor,  were,  by  statute,  surrounded 
by  many  safeguards  (4  Kent.  Com.,  517;  marg.p).  Our  statutes 
(enacted  in  1813,)  originally  read,  almost  verbatim  with  the 
English  statute,  as  follows  : 

XIV.  And  be  it  further  enacted :  That  no  nuncupative  will 
shall  be  good  where   the  estate  thereby  bequeathed  shall  ex- 
ceed the  value  of  seventy-five  dollars,  unless  the  same  shall  bo 
proved  by  the  oaths  of  three  witnesses  at  the  least,  who  were 
N.  S.— VOL.  I.— 8. 


ABBOTTS'  PEACTICE  REPORTS. 


Botsford  v.  Krake. 


present  at  the  making  thereof,  nor  unless  it  be  proved  that  the 
testator,  at  the  time  of  pronouncing  the  same,  did  bid  the  per- 
sons present,  or  some  of  them,  bear  witness  that  such  was  his 
will,  or  words  to  that  effect  ;  nor  unless  suck  nuncupative  will 
be  made  in  the  time  of  the  last  sickness  of  the  deceased,  and  in 
his  dwelling  house,  or  where  he  had  been  resident  for  ten  days 
or  more  next  before  the  making  of  such  will,  except  where  such 
person  was  surprised  or  taken  sick,  being  from  home,  and  died 
before  his  return  to  the  same. 

XY.  And  be  it  farther  enacted,  That  after  six  months  from 
the  speaking  of  the  pretended  testamentary  words,  no  testimony 
shall  be  received  to  prove  any  nuncupative  will,  except  the 
said  testimony,  or  the  substance  thereof,  was  committed  to 
writing  within  six  days  after  the  making  of  the  said  will  :  and 
further,  that  no  letters  testamentary  or  probate,  of  any  nun- 
cupative will,  shall  pass  the  seal  of  any  court,  until  fourteen 
days  at  the  least  after  the  decease  of  the  testator  shall  be  fully  ex- 
pired, nor  shall  any  nuncupative  will  be  at  any  time  received 
to  be  proved  unless  process  hath  first  issued  to  call  in  the 
widow,  or  next  of  kin  of  the  deceased,  to  the  end  that  they  may 
contest  the  same  if  they  please."  (1  Revised  Laws,  36Y,  §§ 
14,15.) 

These  sections  applied  to  nuncupations  made  by  civilians 
only.  The  statute  contains  the  same  exceptions  in  favor  of 
soldiers  and  sailors,  as  its  English  prototype,  as  follows. 

"  XVII.  And  be  it  further  enacted,  That  widows  may  be- 
queath the  crop  in  the  ground  of  their  lands  holden  in  dower, 
and  that  any  soldier  being  in  actual  military  service,  and  any 
mariner  being  at  sea,  may  dispose  of  his  personal  estate  in  the 
same  manner  as  if  this  act  had  not  been  passed" 

It  will  be  seen  that  neither  the  English  statute  nor  our  Re- 
vised Laws  applied  to  a  holograph,  or  written  will,  and  hence, 
in  this  State,  'any  person  could  make  such  a  will. 

In  Watts  v.  Public  Administrator,  the  Surrogate  of  the  city 
of  New  York  admitted  a  holograph  will  to  probate,  regular  in 
form,  though  unsigned,  and  with  a  testatum  clause  without  wit- 
ness, notwithstanding  it  was  claimed,  that  the  fact  that  it  was 
unsigned,  and  with  a  testatum  clause,  showed  the  testator  in- 
tended something  more  should  be  done  to  complete  it.  (See 
the  able  opinion  of  CAMPBELL,  Surrogate,  1  Paige,  352  —  361.) 
The  Chancellor,  however,  reversed  the  Surrogate,  (1  Paige,  348  — 


NEW  SERIES ;  VOL.  I.  115 


Botsford  v.  Krake. 


383,)  conceding  the  will  would  have  been  valid — signed  or  un- 
signed— if  there  had  been  nothing  on  its  face  showing  the 
testator  intended  to  do  something  further  to  complete  it,  but 
thought  the  testatum  clause  sufficient  evidence  that  he  intended 

C5 

to  sign  it,  and  procure  witnesses  upon  it  before  it  should  take  effect 
On  appeal  to  the  Court  of  Errors  that  Court  reversed  the  Chancel- 
lor, and  affirmed  the  Surrogate's  decree  admitting  the  will  to  pro- 
bate. (4  Wend.,  168.) 

So  MASON,  J.  says,  (8  N.  T.  Rep.,  201)  "  a  will  of  personal 
estate,  if  written  in  the  testator's  own  hand,  though  it  has  neither 
his"  name  nor  seal  to  it,  nor  witnesses  present  at  its  publication, 
was  held  effectual,  provided  the  handwriting  could  be  proved." 

Nor  is  it  necessary  that  a  holograph  will  should  be  in  any 
particular  form.  (Redfold  on  Wills,  168—170 ;  176 ;  542,  and 
cases  cited.)  Such  was  the  law  of  our  State  in  1830.  Has  it 
been  changed  as  regards  soldiers  and  sailors  ?  The  Revisers,  in 
their  notes,  say  "  sections  25,  26,  27  related  to  nuncupative 
wills,  and  conformed  with  some  new  guards  and  restrictions  to 
the  14th,  15th  and  17th  sections  of  the  act  of  1813,  and  to  20 
Johns.,  502  ;  but  the  legislature  substituted,,  in  lieu  thereof  §  22 
R.  S.,  abrogating  such  wills,  except  when  made  ly  soldiers  or 
mariners"  The  22nd  section  referred  to,  is  as  follows :  " No 
nuncupation  or,  unwritten  will  bequeathing  personal  estate,  shall 
be  valid,  unless  made  by  a  soldier,  while  in  actual  military  ser- 
vice, or  by  a  mariner  while  at  sea.  (2  R.  S.,  60,  §  22,  marg.  p.) 

As  regards  soldiers  and  sailors  no  change  was  intended.  As 
to  them  the  law  was  left  precisely  as  it  existed  at  common 
law.  Judge  Mason  says  (8  N.  Y.,  199.)  "  As  to  the  wills  of 
soldiers  in  actual  military  service,  and  mariners  at  sea,  they 
are  left,  entirely  untrammeled  by  our  statutes,  and  are 
governed  ly  the  principles  of  the  common  law.  The  ex- 
ceptions in  our  statute  of  wills  in  favor  of  soldiers  and  marin- 
ers was  taken  from  the  29  Car.,  2,  chap.  3,  and  is  precisely  the 
same,  and  the  same  exception  is  retained  in  England  by  their 
new  statute  of  wills."  (1  Viet.,  26,  §  11.)  It  is  true  that  sec. 
40  of  our  statute  of  wills  declares  that  "  every  last  will  and 
testament  of  real  and  personal  property,  or  both,  shall  be 
executed  and  attested  in  the  following  manner." 

This  section  must  be  read  in  connection  with  section  22, 
supra,  so  as  to  make  the  entire  statute  harmonious,  and  to 
give  a  meaning  to  both  sections.  The  correct  reading  of 


116  ABBOTTS'  PRACTICE  REPORTS. 

Botsford  v.  Krake. 

sees.  23  and  40  will  then  be  as  follows  :  "  Every  last  will  of 
real  and  personal  property,  or  both,  unless  made  by  a  soldier, 
while  in  actual  military  service,  or  by  a  mariner  while  at  sea, 
shall  be  executed  and  attested  in  the  following  manner.  *  *  * 
The  will  of  a  soldier  while  in  actual  military  service,  or  of  a 
mariner  while  at  sea,  may  be  made  in  the  same  manner  as  if 
this  act  had  not  been  passed,"  and  such  our  courts  have  held 
to  be  the  real  meaning  of  the  two  sections  (8  JV.  Y.,  199  ;  4 
Sradf.,  154). 

III.  In  this  case  the  testator,  while  on  an  expedition — after 
onr  army  had  commenced  its  advance  on  Richmond,  1864 — 
wrote  a  letter  saying  if  he  never  returned,  he  wanted  the  re- 
spondent to  have  his  property.     He  was  clearly  "in  actual 
military  service,"  and  on  an  expedition  (Ttedf.   Wills,  191,  4 
Bra/If .,  158),  so  that  the  question  whether  a  soldier  while  in 
camp,  or  on  garrison   duty,   can   make  a  valid  will,  without 
observing  the  formalities  required  by  statute,  is  not  in  the 
case.     It  is  difficult  to  see  why  such  an  one  might  not,  under 
the  broad  language  of  our  statute,  which  only  requires  that  he 
be  in  actual  military  service.     Nor  do  I  see  how  it  can  be 
claimed  that  the  testator,  if  a  soldier,  must  be  in  extremis, 
if  by  this  be  meant  sick  or  wounded,  and  expecting  immediate 
death.     It  is  true  the  case  of  Prince  v.  Hazelton  (20  Johns., 
502,)  very  properly  holds  that  in  case  of  a  civilian  the  tes- 
tator must  be  in  that  condition,  for  the  very  statute  under 
which  it  was  decided  (1   Revised  Laws,  367,  §§  14,  15),  ex- 
pressly declared,  that  to  entitle  a  civilian  to  make  a  nuncu- 
pative will,  it  must  "  l)e  math  in  the  time  of  the  last  sickness 
of  the  deceased."      Neither  the  English  statutes,  the  Revised 
Laws,  nor  the  Revised  Statutes  contain  any  such  provision   in 
regard  to  soldiers  or  sailors,  and  what  right  has  the  court  to 
require  any  requisite  except  what  the  law-making  power  have 
seen  fit  to  declare  shall  exist  ?  It  is  possible  that  in  some  cases, 
where  the  point  was  not  up,  the  courts  in  speaking  of  soldiers 
and  sailors,  without  having  attention  called  to  the  difference 
between  them  and  civilians,  may  have  used  the  same  language ; 
but  I  have  been  unable  after  diligent  search  to  find  a  case  in 
this  country  or  England  denying  probate  to  a  soldier's  or  sail- 
or's will,  on  the  ground  that  he  was  not  at  its  making  sick  or 
wounded,  while  several  are  reported  where  probate  has  been 
granted  to  those  made  when  the  testator  was  not  in  that  con- 


NEW  SERIES ;   VOL.  I.  117 


Botsford  v.  Krake. 


dition.  This  being  a  written  will  like  that  in  Watt8  v.  Public 
Administrator  (1  Paige,  348,  4  Wend.,  168),  and  the  law  not 
having  been  changed  as  to  soldiers  and  sailors,  the  decision 
in  that  case  should  control.  The  will  in  that  case  was  made 
while  the  testator  was  in  good  health,  and  many  years  before 
he  died  (1  Paige,  355).  So  in  Hattat  -y.  Hattat  (4  Hagg.,  211, 
Redf.  on  Wills,  176),  the  writing  was  made  in  the  account 
book  eigJit  months  before  death.  Redfield  says,  "  It  is  left  un- 
determined in  Hubbard  v.  Ilubbard  (S  N.  Y.,  203),  whether 
this  requirement  in  regard  to  nuncupative  wills,  namely,  that 
they  must  be  made  while  the  testator  is  conscious  of  the  near 
approach  of  death,  is  applicable  to  the  wills  of  soldiers  and 
seamen ;  but  it  is  claimed  that  as  this  requirement  existed 
long  before  the  statute  of  frauds,  it  must  be  regarded  as  appli- 
cable to  such  cases,  since  by  the  express  terms  of  the  statute, 
those  classes  of  persons  are  allowed  to  dispose  of  their  effects 
'  as  before  the  making  of  this  act.'  But  the  decided  cases  do 
not  all  seem  to  conform  to  this  mew"  (Redf.  Wills,  190 — 1.) 
The  learned  author  does  not  seem  to  have  had  his  attention 
called  to  the  distinction  between  soldiers  and  civilians,  which 
renders  the  decisions  harmonious. 

Again  he  says:  (p.  192,)  "  By  the  civil  law,  the  ordinary 
formalities  of  executing  nuncupative  wills  were  dispensed 
with  in  favor  of  soldiers,  and  their  wills  were  held  valid,  al- 
though they  should  neither  call  the  legal  number  of  witnesses, 
nor  observe  any  other  of  the  ordinary  solemnities  in  the  execu- 
tion of  such  instruments,  and  the  same  indulgence  is  held  by 
Swinburne  applicable  to  soldiers  in  England" 

Mr.  Surrogate  BRADFORD,  one  of  the  most  learned  judges 
upon  the  subject  of  wills  in  America,  says  in  Ex  parte  Thomp- 
son (4  Bradf.,  160),  "As  well  because  the  wills  of  sol- 
diers and  mariners  were  excepted  from  the  operation  of  the 
provisions  of  the  statute  of  frauds,  as  for  the  reason  and 
grounds  of  the  exception,  and  the  peculiar  character  of  the 
military  testament,  it  was  never  held  requisite  that  the  nuncu- 
pations should  be  made  during  the  last  sickness." 

Judge  MASON  says,  (8  N.  Y.,  200—201),  "The  civil  law 
was  extremely  indulgent  in  regard  to  the  wills  of  soldiers.  If 
a  soldier  wrote  anything  in  bloody  letters  upon  his  shield,  or 
in  the  dust  of  the  field  with  his  sword,  it  was  held -a  good  mil- 
itary testament.  The  common  law  however  has  not  extended 


118  ABBOTTS'  PRACTICE  REPOETS. 

Botsford  v.  Krake. 

this  privilege  so  far  as  the  civil.  Blackstone  says  that  soldiers 
in  actual  military  service  may  make  nuncupative  wills,  and 
dispose  of  their  goods,  wages,  and  other  personal  chattels, 
without  those  forms,  solemnities  and  expenses  which  the  law 
requires  in  other  cases" 

The  English  statute,  as  above  shown,  is  the  same  as  ours. 

In  re  Parker  (2  Swaby  and  Tristram ,  375,  Red/.,  200,  note). 
"  Where  the  master  of  a  vessel,  being  at  an  intermediate  port, 
wrote  and  forwarded  by  post  a  letter  of  which  some  portion 
was  testamentary,  the  vessel  being  subsequently  lost  at  sea,  it 
was  held  that  he  was  a  mariner  at  sea,  and  that  such  letter  be- 
ing in  his  handwriting,  and  testamentary,  was  entitled  to  pro- 
bate." 

So  in  goods  of  Milligan  (2  Robertson,  108),  "where  the  tes- 
tator on  the  5th  of  August,  1848,  being  perfectly  well,  wrote 
and  sent  a  letter,  some  portion  of  which  was  testamentary,  and 
did  not  die  until  May  16th,  1849,  it  was  held  the  testamentary 
portion  should  be  admitted  to  probate. 

The  High  Court  of  Errors  of  Mississippi,  in  Anderson  v. 
Prior  (10  Smedes  and  Marshall,  620),  held,  u  It  is  competent 
for  a  volunteer  in  the  army  of  the  United  States,  in  Mexico, 
who  is  a  citizen  of  Mississippi,  to  make  his  last  will  and  testa- 
ment, while  abroad  in  Mexico,  disposing  of  property  in  that 
State. 

"  In  such  case,  a  letter  written  in  the  handwriting  of  such 
volunteer,  in  which  he  expresses  his  desire  as  to  the  disposition 
of  his  property,  in  case  of  his  death,  was  held  to  have  been 
properly  admitted  to  probate  as  his  will." 

The  reason  why  soldiers  and  sailors  are  allowed  to  make 
informal  wills  is  obvious.  They  may  desire  to  make  them 
when  away  from  the  conveniences  for  so  doing — when  no 
counsel  is  at  hand  to  advise  or  conduct  the  making — when  wills, 
if  made,  could  not  be  easily  or  safely  kept,  to  await  the  death 
of  the  testator — and  many  reasons  equally  cogent  will  readily 
occur. 

They  are  not  required  to  be  wounded  or  sick,  when  the  will 
is  made,  by  reason  (as  stated  by  Mr.  Surrogate  BRADFORD, 
supra),  of  the  peculiar  character  of  the  military  testament. 

Suppose  a  soldier  should  learn  while  on  an  expedition  that  some 
relative  had  died,  and  he  had  become  possessed  of  a  large  pro- 
perty. It'  he  could  only  make  a  valid  will  after  he  was  sick 


NEW  SERIES;  VOL.  I.  119 

Botsford  v.  Krake. 

or  wounded,  and  was  in  expectation  of  immediate  death,  he 
might  now  be  able  to  do  so.  While  perfectly  well  a  bullet  from 
the  enemy  might  terminate  his  life  without  an  opportunity  to 
speak  a  word.  It  may  be  said  that  this  would  be  an  extreme 
case,  but  when  we  consider  that  for  months,  and  even  years,  we 
have  had  over  a  million  soldiers  in  the  field,  it  is  by  no  means 
an  improbable  one.  The  true  rule  is  to  require  nothing  more 
than  what  the  statute  says  shall  entitle  the  soldier  to  make  a 
will.  If  tne  courts  are  allowed  to  engraft,  by  construction,  one 
requisite,  they  may  a  multitude,  and  the  soldier  be  substantially 
deprived  of  the  right  to  make  a  will.  He  who  lays  down  his 
life  for  his  country,  has  a  right  to  ask  that  his  solemn  request 
.  as  to  the  disposition  of  this  world's  goods  shall  be  respected, 
and  carried  out  by  it. 

George  JBrooJcs,  guardian  for  Mary  J.  Krake,  cited  and  com- 
mented upon  12  Barb.,  148;  8  N.  Y.,  196;  Dayt.  Surr., 
(3rd  ed.}  126,  and  other  authorities  there  cited. 

E.  M.  CAUL,  SURROGATE. — The  deceased,  a  volunteer  from  thia 
State  in  the  actual  service  of  the  United  States,  was  wounded  in 
battle,  on  the  Weldon  R.  R.,  in  Virginia,  August  18th,  1864, 
and  died  same  night.  Previous  to  his  death,  in  a  letter  written 
to  his  sister,  Jane  Botsford,  he  expressed  a  desire  and  inten- 
tion in  the  event  of  his  death  that  his  property,  which  con- 
sisted of  personal  estate,  should  go  to  his  sister,  said  Jane 
Botsford.  On  the  eve  of  his  death,  it  appe*ars  that  the  subject 
that  deceased  desired  to  have  his  sister  Jane  have  his  property, 
was  discussed  by  his  attendants,  although  they  do  not  swear 
that  he  said  so.  .1  am  therefore  of  the  opinion  it  does  affirma- 
tively appear  that  deceased  intended  to  make  a  testamentary 
disposition  of  his  property,  and  that  his  sister,  Jane  Botsford, 
was  to  be  the  sole  legatee  therein.  But  it  is  insisted  that  our 
statutes  do  not  allow  or  tolerate  such  disposition  of  property, 
except  in  cases  of  soldiers  and  seamen,  and  that  they  must  be 
in  extremis.  Deceased  being  a  soldier,  the  only  question  re- 
maining is,  does  the  statute  restrict  the  making  of  this  class  of 
wills  not  only  to  the  class  of  persons  mentioned  in  the  statute, 
but  also  to  the  condition  of  the  deceased  at  the  time  of  making 
the  disposition.  Judge  BRADFORD  holds,  in  Ex parU  Thompson 
(4  £radf.}  154),  that  there  is  no  restriction  as  to  their  con 


120  ABBOTTS'  PRACTICE  REPORTS. 

Botsford  v.  Krake. 

dition.  In  Hubbard  v.  Hubburd  (12  Barb.,  154),  the  court 
says  the  deceased  must  be  in  extremis.  The  case  went  to  the 
Court  of  Appeals,  and  in  that  court  was  disposed  of  without 
any  reference  to  the  question,  except  saying  that  it  was  not 
necessary  to  decide  it.  On  a  careful  examination  of  both  the 
cases  above  referred  to,  I  find  the  question  was  not  material 
to  the  disposition  of  either,  and  neither  is  therefore  binding  as 
an  authority.  I  am  inclined  to  the  opinion  that  this  is  not  a 
case  where  it  becomes  material  to  pass  upon  this  question  for 
the  reason  that  the  facts  in  this  case  do  not  render  it  absolutely 
necessary  to  pass  upon  it.  At  the  time  this  letter  was  written, 
the  deceased  was  in  the  army,  on  an  expedition,  and  in  that 
portion  where  active  operations  were  constantly  going  on. 
It  was  moving  on  to  Richmond,  and  from  that  time  to  the 
time  of  his  death  was  constantly,  and  almost  daily  engaged  in 
fighting,  so  that,  in  fact  there  was  no  period  of  time  during 
the  season  of  1864,  in  that  part  of  our  army,  but  a  soldier 
might  be  said  to  be  in  peril  of  his  life.  He  was  constantly 
exposed,  or  liable  to  be  constantly  exposed,  to  death,  and  this 
disposition  of  his  property  was  clearly  made  in  view  thereof. 
He  cannot  be  said  to  be  in  extremis  by  sickness,  disease,  &c. 
but  the  peril  of  death,  if  required,  I  think  may  be  from  any 
other  cause,  and  existed  in  this  case  by  the  liability  of  and  the 
danger  from  constant  engagements  in  battle.  Counsel  for  the 
proponent  argued  that  it  was  only  requisite  that  the  soldier 
should  be  "  in  actual  military  service."  This  is  certainly,  at 
this  time,  an  important  question,  but  I  do  not  deem  it  necessary 
to  pass  upon  it.  1  think  this  one  of  the  cases  intended  to  be 
provided  for  by  our  statute,  and  that  the  disposition  made  by 
the  deceased  is  valid.  That  portion  of  the  letter  must  be  ad- 
mitted to  probate  as  a  will. 

Decision  accord  in  o-i" 


NEW  SERIES;  VOL.  I.  121 

Graham  v.  Chrystal. 


GRAHAM  against  CIIRYSTAL. 
Supreme  Court,  first  District  /  General  Ter?n,  May^  1865. 

INTEREST.  —  EXCEPTIONS.  —  PROOF  OF  Loss  OF  PAPERS.  —  PRELIM- 
INARY EVIDENCE. 

The  old  common  law  rule,  which  requires  a  demand  to  be  liquidated,  or  its 
amount  ascertained,  before  interest  can  be  allowed,  has  been  so  far  modi- 
fied, that  if  the  amount  is  capable  of  being  ascertained,  it  carries  interest. 

A  general  exception  to  the  findisg  of  a  referee  allowing  interest  is  not 
specific  enough  ;  if  the  error  is  in  allowing  interest  for  too  long  a  period, 
the  exception  should  state  from  what  period  it  should  be  computed. 


The  proof  of  the  loss  of  papers,  is  a  preliminary  matter  addressed  to  the 
Court  exclusi?el}'(  and  its  sufficiency  is  to  be  passed  on  by  the  Court,  in 
view  of  the  peculiar  features  of  each  case. 

• 

APPEALS  in  two  cases,  from  the  judgments  entered  therein, 

oa  the  reports  of  a  referee. 

The  action  in  which  the  first  opinion,  below  reported,  was 
delivered,  was  brought  by  John  Graliarn.  The  other  action 
was  brought  by  Dewitt  C.  Graham,  and  James  S.  Carpenter,  as 
ex  cutor.s  of  the  will  of  David  Graham,  deceased.  Both  actions 
were  against  the  same  defendant,  Peter  Chrystal. 

I.  The  action  of  John  Graham  against  Chry$tal,  was 
brought  upon  a  claim  by  the  plaintiff  for  professional  services 
alleged  to  have  been  rendered  for  the  defendant,  in  defend- 

o  * 

ing  him  in  two  criminal  prosecutions,  one  against  him  alone, 
and  the  other  against  him  and  one  Joseph  B.  Pollard,  com- 
menced in  the  month  of  October,  1845,  and  terminated,  in  the 
case  of  the  prosecution  against  the  defendant  alone,  June  14, 
1847,  and  in  the  case  of  the  prosecution  of  the  defendant  and 
Poliard,  in  May  Term,  1850. 

The  plaintiff  claimed  that  the  defendant  promised  to  pay 
what  the  services  were  reasonably  worth,  and  that  the  sum  of 
nine  hundred  dollars,  and  interest  thereon  from  June  1,  1850, 
were  due. 

The  defendant  denied  the  retainer,  and  th«  promise  to  pay. 
Also,  that  the  services  were  reasonably  worth  the  amount 
claimed  by  plaintiff,  and  pleaded  the  Statute  of 


122  ABBOTTS'  PKACTICE  REPORTS. 

Graham  v.  Chrystal. 

The  plaintiff  replied,  putting  in  issue  the  allegations  under 
the  defence  of  the  Statute  of  Limitations. 

The  case  was  tried  before  a  referee,  who  reported,  among 
other  things,  that  in  1848,  the  defendant  left  the  State  without 
apprising  the  plaintiff  of  his  intention  so  to  do,  and  plaintiff 
was  ignorant  of  his  residence,  from  that  time  till  shortly  before 
the  commencement  of  this  action  ;  that  the  work  and  labor 
done  before  June  1st,  1850,  after  crediting  the  defendant  with 
a  payment  of  one  hundred  dollars,  was  worth  nine  hundred 
dollars,  and  that  that  sum  with  interest  from  June  1st,  1850, 
amounting  together  at  the  date  of  the  report,  to  $1,731  95, 
was  due  from  the  defendant  to  the  plaintiff. 

Judgment  was  thereupon  entered  by  the  plaintiff  for  that 
amount,  and  costs.  The  defendant  filed  the  following  excep- 
tion: "Please  take  notice,  that  the  defendant  herein  hereby 
excepts  to  each  and  every  of  the  findings  of  fact  and  conclusions 
of  law  contained  in  the  referee's  report  in  this  action,  except 
the  6th  and*  7th  findings  of  fact," — and  appealed  from  the  judg- 
ment. 

Ilarison  &  Waring,  for  the  appellant  (alter  other  points)  VI. 
The  referee  erred  in  the  second  conclusion  of  law,  in  allowing 
interest  from  June,  1850.  No  account  was  ever  made  out  or 
rendered,  and  the  defendant  was  not,  therefore,  chargeable  with 
interest.  The  plaintiff  allows  ten  years  to  elapse  without  assert- 
ing any  claim  in  any  form.  The  sum  of  $831.95  should  be  de- 
ducted from  the  recovery,  and  interest  allowed  only  from  com- 
mencement of  this  action — if  there  be  judgment  for  plaintiff  for 
any  amount. 

Carpentier  &  Beach,  for  the  respondent. — I.  The  exceptions 
to  the  report  and  decision  of  the  referee  are  insufficient  and  in- 
valid. (1)  They  are  too  general  and  vague  (Willard  v.  Warren, 
17  Wend.,  257).  (2)  There  is  no  sufficient  exception  to  the  con- 
clusions of  law,  and  this  court  is  not  authorized  to  review  the  de- 
cision (Brewer  v.  Isish,  J2  How.  Pr.,  481  ;  Magie  v.  Baker,  14 
N.  Y.  [4  Kern.'],  435).  (3)  To  enable  the  appellant  to  object 
to  the  allowance  of  interest  for  the  whole  period,  his  exception 
should  havo  been  more  specific  and  certain,  pointing  out  the 
error  complained  of  (McMahon  v.  The  New  York  and  Erie 
R.  R.  Co.,  20  N.  Y.,  463). 


NEW  SERIES ;  VOL.  I.  123 

Graham  v.  Chrystal. 

n.  The  allowance,  by  the  referee,  of  interest  upon  the  amount 
of  the  recovery  ($900)  from  June  1st,  1850,  was  proper. 

The  law  of  interest  was  very  fully  considered  in  the  case  of 
the  Eensselaer  Glass  Factory  v.  Reid  (5  Cow.,  587).  It  is  referred 
to  by  Golden,  Senator  (at  p.  596)  as  being  an  equitable  allow-  • 
ance ;  and  the  law  in  this  State  has  settled  down  into  the  prin- 
ciple that  it  is  an  equitable,  and  must  be  a  full,  indemnity  from 
and  with  reference  to  the  time  of  the  default  of  the  party  upon 
whom  it  is  inflicted.  It  was  advanced  in  that  case  by  Spencer, 
Senator,  that  interest  was  allowed  by  the  Court  in  certain  cases 
as  matter  of  law — i.  e.,  in  cases  of  implied  as  well  as  express 
agreement — and  by  the  jury  in  other  cases,  under  the  direction 
of  the  Court,  as  an  addition  to  the  damages  (pp.  614,  616). 

If  interest  is  to  be  inflicted  upon  principles  of  equity,  and  as  a 
mulct  for  the  default  of  a  party,  the  appellant  (Chrystal)  was  in 
default  from  the  time  the  respondent's  services  were  rendered  to 
him.  No  term  of  credit  was  given  to  him.  The  plaintiff  did 
not  agree,  but  was  forced  to  wait  his  convenience.  If  the  appel- 
lant could  run  away  (as  he  did),  and  deprive  the  respondent  of 
interest  upon  his  claim,  during  his  (the  appellant's)  absence,  lie 
would  be  permitted  to  take  advantage  of  his  own  wrong,  which 
neither  law  nor  equity  ever  allows. 

In  Lush  v.  Druse  (4  Wend.,  313),  it  was  held  that  a  landlord 
is  entitled  to  interest  upon  rents,  payable  in  wheat,  from  the 
day  stipulated  for  delivery ;  and  this  upon  the  principle  that  it 
was  the  value  of  the  wheat  that  became  due,  which  value  was 
payable  in  a  particular  way,  and  that  this  value  could  be  ascer- 
tained by  reference  to  the  "  market." 

This  principle  was  followed  up  in  Yan  Rensselaer  v.  Jewett 
(2  N.  Y.  [2  Comst.],  135)  and  broadened  into  this  rule :  "  Where  a 
debtor  is  in  default  for  not  paying  money,  delivering  property,  or 
rendering  services,  in  pursuance  of  his  contract,  he  is  chargeable 
with  interest  from  the  time  of  default,  on  the  specified  amount 
of  money,  or  the  value  of  the  property  or  services  at  the  time 
they  should  have  been  paid  or  rendered."  In  affirmance  of  this 
rule  is  Livingston  v.  Miller  (11  IV.  Y.  [1  Kern.},  80). 

In  McMahon  v.  The  New  York  and  Erie  R.  R.  Co.,  (20  N.  Y 
463,  469),  it  is  asserted  by  Selden,  J.,  that  interest  is  sometimes 
allowed,  although  the  amount  of  the  demand  neither  has  been 
nor  can  readily  be  ascertained,  where  the  debtor  is  in  default 
for  not  having  taken  the  requisite  steps  to  ascertain  the  amount 


124  ABBOTTS'  PRACTICE  EEPOETS. 

Graham  v.  Chrystal. 

of  his  debt  (Van  Rensselaer  v.  Jones,  2  Barb.,  643  ;  Dana  v. 
Fiedler,  12  N.  Y.  [2  JTern.l  40). 

BY  THE  COURT. — CLERKE,  J. — We  intimated  on  the  argument, 
that  the  objections  embraced  in  the  first  five  points  of  the 
defendant's  counsel  were  untenable,  and  we  required  no  notice 
of  them  on  the  part  of  plaintiff's  counsel. 

The  sixth  point  of  defendant's  counsel  relates  to  the  finding 
of  the  referee,  on  the  subject  of  interest.  He  maintains,  that 
as  no  account  was  to  be  made  out  or  rendered,  the  defendant 
was  not,  therefore,  chargeable  with  interest.  As  the  court 
remarked  in  McMahon  v.  The  N.  Y.  and  Erie  R.  R.  Co.,  (20^. 
J7".,  469),  "  the  old  common  law  rule,  which  required  that 
a  demand  should  be  liquidated,  or  its  amount  in  some  way 
ascertained,  before  interest  could  be  allowed,  has  been  modi- 
fied by  general  consent,  so  far  as  to  hold,  that  if  the  amount 
is  capable  of  being  ascertained,  then  it  shall  carry  interest. 
It  was  the  duty  of  the  defendant  in  this  case,  being  the  debtor 
of  the  plaintiff,  to  ascertain  the  amount  of  his  debt.  This 
con'd  easily  have  been  done,  if  he  intended  to  pay  for  the 
services  rendered  to  him  by  the  plaintiff,  which  j)e  was 
bound  to  do  on  their  completion.  I  think,  therefore,  the  ex- 
ception to  this  finding  of  the  referee,  would  be  untenable,  even 
if  it  was  properly  made.  But  it  is  not  properly  made.  The 
exception  is  not  specific  enough.  It  is  a  general  exception  to 
the  finding.  If  the  error  was  in  allowing  interest  for  too  long 
a  period,  the"  exception  should  have  stated  from  what 
time  it  should  be  computed ;  so  as  to  give  the  plaintiff 
an  opportunity  of  remitting  the  excess,  and  thus  avoid  the 
consequences  of  the  error.  (McMahon  v.  The  N.  Y.  and  Erie 
R.  R.  Co.,  20  JT.  Y.,  470.) 

(The  Court  then  disposed  of  some  minor  exceptions,  which 
are  not  important  to  be  noticed  here.] 

Judgment  affirmed. 

II.  The  other  action  was  brought  by  Dewitt  C.  Graham, 
and  James  S.  Carpentier,  as  executors  of  the  will  of  David 
Graham,  and  was  to  recover  for  professional  services  rendered 
by  their  testator  to  the  defendant,  in  the  same  matters  as  in  the 
above  suit  of  John  Graham.  Much  of  the  evidence  in  the  two 


NEW  SEEIES;  VOL.  I.  125 

Graham  v.  Chrystal. 

cases  was  identical.  Among  other  things  offered  by  the  de- 
fendant in  both  cases  was  evidence  of  the  contents  of  letters 
of  David  Graham,  which  was  objected  to  and  overruled  in  both 
cases. 

The  following  was  the  introductory  examination  of  the  de- 
fendant. Q.  Have  you  received  any  letters  or  notes  from 
David  Graham?  A.  I  have  received  a  letter  from  Mr.  David 
Graham  in  reference  to  this  business.  Q.  How  many  notes  ? 
A.  Two  or  three.  Q.  Where  are  those  notes?  A.  I  have 
looked  for  them  among  my  papers,  and  cannot  find  them.  Q. 
What  were  those  letters  in  reference  to?  A.  Money  matters 
mostly.  Q.  Can  you  state  the  contents  of  them  ?  A.  No ;  I 
could  not  state  the  precise 'words,  but  think  I  could  give  the 
substance  perhaps.  Q.  Will  you  state  the  substance  of  them, 
sir? 

This  question  was  overruled,  and  the  defendant's  counsel 
excepted. 

Harison  &  Waring,  for  the  appellants. 
Carpentier  &  Beach,  for  the  respondent. 

BY  TUB  COURT. — CLEKKE,  J. — We  see  no  better  reason  for 
disturbing  the  findings  of  fact  in  this  case,  than  in  that  in 
which  John  Graham  is  plaintiff.  The  exceptions  in  this 
case,  worthy  of  any  consideration,  are,  except  one  of  them, 
similar  to  these  in  the  other,  and  must  receive  the  same  dis- 
position. The  exceptions  have  been  treated  by  the  counsel  in 
both  cases  as  similar,  except  that  relative  to  the  ruling,  reject- 
ing parol  evidence  of  the  contents  of  David  Graham's  notes  to 
the  defendant.  While  admissions  made  by  David  Graham, 
could  not  bind  John  Graham,  they  would  bind  himself,  and 
his  representatives.  The  only  question,  therefore,  on  this 
point,  is,  whether  sufficient  proof  of  the  loss  of  the  notes  was 
given  to  allow  secondary  evidence  of  their  contents.  Second- 
ary evidence  is  not  admissible,  if  by  reasonable  diligence  the 
original  could  have  been  produced.  The  degree  of  diligence 
depends  on  the  nature  of  the  transaction  to  which  the  paper 
relates,  and  other  circumstances.  The  sufficiency  of  the  proof 
of  the  loss  is  a  preliminary  point,  addressed  to  and  determined 
by  the  court  exclusively,  and  upon  which  it  has  to  pass  in 
view  of  the  peculiar  features,  which  characterize  each  case  as 


126 ABBOTTS'  PBACTICE  REPORTS. 

Conger  v.  Vandewater. 

it  arises.  In  the  case  before  us  the  witness  testified  that  he 
had  looked  for  the  notes  among  his  papers  and  could  not  find 
them.  He  did  not  say  where  he  had  made  the  search,  or 
that  he  had  made  a  diligent  search;  he  gave  no  particulars, 
and  did  not  state  whether  he  believed  they  were  lost.  The 
referee,  who  had  the  witness  before  him,  was,  undoubtedly, 
the  best  judge  of  the  reliability  of  this  preliminary  proof; 
and  he  was  satisfied  that  there  was  not  sufficient  proof  of  the  loss 
of  the  notes  to  admit  secondary  evidence  of  their  contents.  We 
cannot  say  that  he  erred  in  excluding  it.  I  think  the  judg- 
ment should  be  affirmed,  with  costs. 

Judgment  affirmed. 


CONGER  against  VANDEWATER. 
Supreme  Court,  First  District ;  General  Term,  May,  1865. 

STATUTE  OF  LIMITATIONS. — JUDGMENTS  OF  JUSTICES,  AND  DISTKICI 

COURTS. 

Under  the  Code,  th«  period  limited  for  the  commencement  of  actions  upon  a 
judgment  or  decree  in  any  court,  is  twenty  years,  and  this  includes  judg- 
ments in  the  Marine  and  Justices'  Courts. 

Appeal  from  a  judgment  recovered  at  the  circuit. 

This  action  was  brought  by  Clinton  W.  Conger,  against 
Clarke  Yandewater  and  William  Valentine.  The  complaint 
alleged  that  the  10th  day  of  April,  1856,  William  E.  Wheaton 
recovered  a  judgment  in  the  Marine  Court  of  the  city  of  New 
York,  against  Clark  Yandewater  and  Willi.am  Valentine,  for 
the  sum  of  four  hundred  and  forty-one  dollars,  and  that  oh  the 
same  day  a  transcript  thereof  was  duly  filed  and  docketed  in 
the  office  of  the  clerk  of  the  city  and  county  of  New  York; 
that  the  judgment  had  been  duly  assigned  to  the  plaintiff", 
Clinton  W.  Conger,  and  that  there  remained  due  to  the  plain- 
tiff thereon,  the  sum  of  two  hundred  and  fifty-six  dollars,  and 


NEW  SERIES;  VOL.  I.  127 

Conger  v.  Vandewater. 

forty-three  cents,  with  interest  thereon  from  October  10,  ISotf, 
for  which  judgment  was  demanded. 

The  defendant's  answer  contained  a  general  denial,  and  also 
set  up  "that  the  cause  of  action  set  forth  in  the  complaint, 
did  not  accrue  within  six  years  next  before  the  commence- 
ment of  this  action,  and  that  the  same  was  barred  by  the 
Statute  of  Limitations." 

The  cause  was  tried  before  the  Hon.  William  H.  Leonard, 
Justice,  without  a  jury,  at  a  Circuit  Court,  held  at  the  City 
Hall,  in  the  city  of  New  York,  on  the  2d  day  of  July,  1863. 

The  Court  found  and  decided  as  matters  of  fact : 

First. — That  the  judgment  was  recovered  in  the  Marine 
Court,  and  a  transcript  duly  filed,  and  the  judgment  duly  dock- 
eted, in  the  office  of  the  clerk  of  the  city  and  county  of  New 
York,  as  alleged  in  the  complaint. 

/Second. — That  the  action  was  not  brought  within  six  years 
after  the  cause  of  action  accrued. 

The  Court  found  and  decided  as  matters  of  law — 

That  the  action  was  barred  by  the  Statute  of  Limitations, 
in  that  the  cause  of  action  was  not  commenced  within  six 
years  after  the  cause  of  action  accrued,  and  therefore,  that 
the  complaint  be  dismissed  with  costs ;  to  which  finding  of 
law  and  decision  the  plaintiff's  counsel  duly  excepted. 

It  was  proved  that  William  E.  Wheaton  assigned  said  judg- 
ment to  the  plaintiff,  and  that  the  action  was  commenced!  on 
the  22d  day  of  April,  1863.  . 

E.  N.  Taft,  for  plaintiff  appellant. — I.  The  judgment 
upon  which  this  suit  is  brought  is  to  be  regarded  and  treated 
as  a  judgment  of  the  Court  of  Common  Pleas  for.the  city  and 
county  of  New  York,  upon  whose  judgments  an  action  is  un- 
questionably not  barred  in  less  than  twenty  years  (Code,  §§ 
68,  93,  90  ;  Lyon  v.  Manly,  18  How.  Pr.,  267 ;  Waltermire  v. 
Westover,  U  N.  T.  [4  Kern.'],  16). 

II.  But  if  this  judgment  were  to  be  regarded  as  a  judg- 
ment of  the  Marine  Court,  still  the  law  is  plain,  that  an  action 
upon  it  could  be  brought  at  any  time  within  twenty  years 
after  the  cause  of  action  accrued  (Code,  §§  73,  90  &  9). 

By  §  73  the  statutes  existing  at  the  time  of  enacting  the 
Code,  applicable  to  cases  like  the  present,  are  expressly  re- 
pealed, and  the  provisions  of  the  Code  substituted  in  their 


128  ABBOTTS'  PKACTICE  REPORTS. 

Conger  v.  Vandewater. 

stead  (See  Nicholls  v.  Atwood,  16  How.  Pr.,  475  ;  Delavan  v. 
Florence,  9  All.  Pr.,  277 ;  Mills  v.  Winslow,  2  K  D.  Smith,  18). 

Abrm.  R.  Lawrence,  for  the  respondent,  argued,  with  other 
matters,  that  "  the  action  on  the  judgment  in  question  was 
barred  by  the  Statute  of  Limitations  (2  R.  S.,  295,  §  18,  2d  ed.; 
Lester  v.  Redmond,  6  Hill,  590). 

BY  THE  COURT. — CLEKKE,  J. — (After  disposing  of  two  points 
of  minor  interest.)  III.  The  only  question  worthy  of  any  con- 
sideration in  this  case,  is,  whether  the  action  on  the  judgment 
in  question  is  barred  by  the  Statute  of  Limitations. 

Regarding  this  as  a  judgment  of  the  Marine  Court,  and  in 
conformity  with  the  decision  in  Lester  v.  Redmond  (6  Hill,  590), 
admitting  that,  in  reference  to  the  provisions  of  the  Revised 
Statutes,  relative  to  the  limitations  of  actions,  the  Marine 
Court  is  not  to  be  deemed  a  court  of  record,  it  appears  to  me, 
that,  by  the  provisions  of  the  Code,  the  period  prescribed  for 
the  commencement  of  action  sis  twenty  years  upon  a  judgment, 
or  decree  in  any  court.  The  provisions  of  title  II.,  chap.  4, 
part  III.,  of  the  Revised  Statutes.,  relate  to  actions  in  all 
courts,  —  courts  of  record  and  courts  not  of  record,  —  and, 
by  the  18th  section  of  that  title,  the  time  limited  for  the  com- 
mencement of  actions  upon  judgments  of  any  court,  not  being 
a  court  of  record,  is  six  years.  New  legislation,  however,  is 
entirely  substituted  by  the  Code  of  Procedure  for  the  provis- 
ions of  the  Revised  Statutes.  This  legislation  is  contained  in 
title  II.  of  the  Code,  consisting  of  four  chapters,  and  thirty- 
eight  sections.  The  very  first  section  of  this  title  (§  73)  repeals 
all  the  provisions  of  the  Revised  Statutes,  and  substitutes  the 
provisions  of  the  title  in  their  stoad.  In  the  class  of  actions, 
the  commencement  of  which  is  limited  to  six  years,  those  upon 
Judgments  rendered  in  any  court,  are  omitted  (§  91),  while  in 
the  class  of  actions,  the  commencement  of  which  is  limited  to 
twenty  years,  judgments  of  any  court  of  the  United  States  or  of 
any  State  or  Territory  are  included  (§  90).  In  the  Revised 
Statutes  the  distinction  between  courts  of  record,  and  courts 
not  of  record  is  carefully  observed  ;  as  in  the  1st  and  2nd  sub- 
divisions of  section  18  of  title  II.,  relating  to  the  limitation  of 
six  years,  and  in  section  46  relating  to  the  limitation  of  twenty 


NEW  SERIES;  VOL.  I.  129 

Powers  v.  Shepard. 

years;  while  the  Code  of  Procedure  makes  no  such  distinction, 
and,  with  an  evident  intent,  entirely  ignores  it. 

This  action  is,  therefore,  not  barred,  and  the  judgment 
should  be  reversed,  and  a  new  trial  ordered,  costs  to  abide 
event. 


POWERS  (against  SHEPARD. 
Supreme  Court,  First  District ;  Special  Term,  October,  1865. 

POWERS  OF  LEGISLATURE. — INTERPRETATION  OF  STATUTES. 

The  provisions  of  sections  3  and  4  of  chapter  29  of  (lie  laws  of  1865,  prescrib- 
ing a  maximum  payment  for  enlisting  soldiers  is  void. 

As  the  statute  interferes  with  Individual  freedom  of  action,  it  must  be  con- 
strued like  a  penal  statute,  strictly ;  and  it  does  not  therefore  forbid  a  con- 
tract for  the  procurement  of  volunteers  at  a  higher  price  than  six  hundred 
dollars. 

Under  onr  system  of  government,  the  moral,  religious,  and  economic  interests 
of  society  are  beyond  the  sphere  of  legislative  action.  The  exercise  by 
the  legislature  of  a  control  over  the  terms  of  contracts  was  never  contem- 
plated by  the  framers  of  the  political  constitution,  and  is  nugatory. 

Demurrer  to  complaint. 

This  action  was  brought  by  Edward  J.  Powers  against  John 
Shepard,  to  recover  the  sum  of  eight  hundred  and  fifty  dollars, 
and  interest,  alleged  to  be  due  upon  a  written  contract  made 
by  defendant  with  plaintiff  to  fill  the  quota  of  seventeen  men, 
called  for  the  United  States,  from  the  town  of  Shasta,  Living- 
ston County,  New  York,  under  call  of  December  19th,  1864, 
by  the  President.  The  contract  was  made  the  9th  day  of 
March,  1865,  and  modified  on  the  21st  day  of  March,  1865.  It 
appeared  by  the  complaint  that  the  terms  of  the  contract  were 
that  the  plaintiff  was  to  enlist  seventeen  recruits  to  the  credit 
of  said  town,  at  an  agreed  price  of  eight  hundred  and  fifty 
dollars  each,  in  full  of  bounties,  premiums,  &c.,  that  said  men 
N.  S.— VOL.  I.— 9. 


130  ABBOTTS'  PRACTICE  REPORTS. 

Powers  v.  Shepard. 

were  furnished,  and  defendant  paid  thereon  the  sum  of  $13,600, 
and  plaintiff  brought  this  action  for  the  balance. 

The  defendant  demurred  to  the  complaint  upon  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action. 

S.  I.  freeman,  in  support  of  the  demurrer. — I.  The  contract 
which  is  declared  upon,  is  in  direct  conflict  with  an  act  of  the 
legislature  passed  Oct.  10,  18^5,  prescribing  the  amount  to  be 
paid  for  substitutes.  The  contract  is  absolutely  void,  and 
plaintiff  cannot  recover  upon  it  (Laws  of  1865,  chap.  29,  §§  3 
and  4). 

II.  It  appears  by  the  allegations  of  the  complaint  that  de- 
fendant has  already  paid  for  each  of  said  recruits  the  sum  of 
eight  hundred  dollars,  being  an  excess  of  one  hundred  dollars 
over  the  amount  allowed  by  the  statute  cited,  to  cover-bounty, 
and  incidental  expenses  of  each  recruit ;  therefore  he  cannot 
recover  further. 

III.  A  pleading  cannot  be  adjudged  frivolous  unless  the 
grounds  are  clearly  untenable  or  manifestly  put  in  for  pur 
poses  of  delay  and  vexation  (6  How.  Pr.,  331). 

This  has  manifestly  not  been  put  in  in  bad  faith,  but  as  the 
only  mode,  in  the  judgment  of  counsel,  to  raise  the  question  of 
the  effect  of  the  statute  cited,  upon  contracts  of  this  nature  ; 
therefore  if  in  the  judgment  of  the^  court  the  pleading  is  in- 
sufficient for  that  purpose,  leave  should  be  granted  to  plead 
over  again. 

IV.  This  contract  is  against  public  policy,  in  drawing  men 
from  one  county  to,  or  to  be  credited  to  another,  and  also  in 
treating  men  as  articles  of  merchandise,  to  be  bought  or  sold. 

Ira  D.  Warren,  for  the  plaintiff. — I.  Section  3  of  the  act  of 
February  24,  1865,  to  provide  for  filling  the  quota  of  men  re- 
quired from  the  State  provides  "  that  no  greater  sum  than  one 
hundred  dollars  shall  be  paid  for  three  years,"  &c.  Section  4 
then  provides,  "  that  no  city,  county,  or  town,  shall  borrow,  &c., 
except  as  provided  in  section  7."  Section  7  provides  for  cities, 
counties  and  towns  borrowing  money  in  certain  ways,  by  a 
vote  of  the  town,  &c.,  making  it  a  town  tax.  Section  4  further 
provides,  "  Nor  shall  any  city,  county,  or  town,  or  individual, 
or  any  individuals,  pay  any  money  for  such  purpose  or  pur- 


NEW  SERIES  ;   VOL.  I.         .  131 

Powers  v.  Shepard. 

poses  otherwise  than  as  herein  provided  (except  that  any  in- 
dividual may  in  any  way  hire  a  substitute  to  exempt  himself 
from  draft)." 

If  the  court  thinks  that  the  language  "  otherwise  than  as 
herein  provided"  refers  to  the  amount  to  be  paid  rather  than 
to  the  manner  of  paying  it,  then  we  say : — 

1st.  There  are  no  negative  words — nothing  showing  what 
the  consequences  of  a  violation  of  the  act  by  an  individual 
will  be.  There  are  no  penalties,  no  mode  of  punishment;  the 
act  is  not  declared  void  if  he  does  it — and  as  it  is  a  perfectly 
legal  one  at  common  law,  there  is  nothing  in  this  act  making 
it  illegal  to  hire  a  man  to  serve  one's  country,  or  a  dozen  men, 
if  one  pleases,  any  more  than  there  will  be  to  hire  them  to 
serve  himself  (Fairchild  v.  Gwynn,  14  Abb.  JPr.,  126,  and 
cases  there  cited).  If  this  statute  means  that  no  individual 
has  the  right  to  more  than  one  subsitute,  when  he  paid  for  it 
from  his  own  means,  then  it  is  one  directly  discouraging  en- 
listment, and  against  public  policy. 

The  allegation  in  the  complaint  is  that  these  seventeen  men 
were  furnished  for  the  defendant.  The  presumption  of  law  is 
that  they  were  furnished  legally,  as  they  were  furnished,  and 
accepted  by  the  defendant. 

It  does  not  appear  that  more  than  six  hundred  dollars  was 
paid  to  any  recruit.  ' 

II.  We  say  that  the  legislature  had  no  power  to  fix  the 
price  of  substitutes,  any  further  than  the  amount  the  State 
would  pay.     If  some  patriotic  man  chooses  to  to  fill  the  entire 
quota  of  his  town,  and  pay  it  out  of  his  own  pocket,  has  he  not 
a  right  to  pay  one  thousand  dollars  each  for  them  ? — can  the 
legislature  say  you  shall  not  pay  more  than  ten  dollars?     The 
language  in  §  4,  "  otherwise  than,  as  herein  provided,"  refers  to 
the  manner  of  payment  provided  for  in  §  7,  rather  than  to  the 
amount.      The  language  of  the  exception  is  "  may  in  any  way 
hire"  not  for  any  amount.    Statutes  in  derogation  of  the  com- 
mon law  admitting  of  two  interpretations,  that  which  most 
nearly  conforms  to   the   common  law  is   in   all   cases  to  be 
adopted,  or  if  there  is  any  ambiguity  or  doubt  about  it  the 
common   law  controls     (McClush  v.  Cromwell,  11  N.  Y.,  593; 
and  see  22  Wend.,  395 ;  2  Cow.,  419;  22  Barb.,  662). 

III.  But  we  think  §  11  of  this  act  settles  this  question.     It 
first  provides  that  it  shall  become  a  law  from  the  day  of  its 


132  ABBOTTS'  PRACTICE  REPORTS. 

Powers  v.  Shepard. 

passage,  but  shall  not  take  effect  until  after  the  canvass  of  the 
vote  at  the  next  general  election,  which  is  in  November  next. 
In  the  concluding  lines  of  §  11  the  legislature  declare  that  the 
law  shall  not  take  effect  "  until  after  the  adjournment  of  the 
next  legislature  "  (Laws  of  1865,  p.  65,  §  11).  Had  it  taken  effect 
within  twenty  days  of  its  passage,  as  provided  for  in  the  Re- 
vised Statutes,  it  could  not  apply  to  us,  as  it  was  passed  Feb- 
ruary 24,  1S65,  and  our  contract  was  made  March  8th,  1865, 
seven  days  before  it  could  have  taken  effect  had  nothing  been 
said  about  it. 

CLERKE,  J. — I.  If  the  legislature  of  this  State  has  the  power 
to  prescribe  to  any  citizen  what  amount  of  money  he  shall 
pay  for  a  substitute  to  represent  him  in  the  national  army,  it 
has  the  power  to  prescribe  what  he  shall  pay  for  any  article  of 
commerce,  for  any  pleasure,  or  any  social  or  domestic  enjoyment. 
I  admit  that  the  legislature  is  vested  with  all  the  powers  of  gov- 
ernment, not  delegated  to  the  United  States,  and  which  have  not 
been  expressly  or  impliedly  delegated  to  other  departments  of 
the  government  of  the  State,  and  that  there  are  no  restraints 
upon  its  political  power,  except  those  which  are  declared  by 
the  constitution  of  the  State.  But,  I,  nevertheless,  think  that 
it  is  not  absolute  and  omnipotent,  and  that  its  power  is  limited 
to  the  legitimate  sphere  of  political  society.  Constitutional 
government,  under  whatever  form  it  may  exist,  is  not  based 
on  the  idea  that  all  the  conduct,  and  acts,  and  interests  of  a 
citizen,  are  the  proper  subjects  of  legislation.  On  the  con- 
trary, the  tendency  of  such  a  system  is  to  confine  the  action  of 
government  within  as  limited  a  sphere  as  is  consistent  with 
the  maintenance  of  the  peace,  good  order,  and  progress  of 
society.  It  recognizes  the  great  truth,  that  the  most  import- 
ant and  sacred  purposes  and  interests  of  society  are  not  within 
the  domain  of  civil  law,  but  are  regulated  and  allowed  by  the 
power  of  self- adjustment,  which  God  .has,  implanted  through 
the  balancing  and  antagonism  in  it,  of  the  various  needs  and 
aspirations  of  the  individuals  of  whom  it  is  composed.  The 
moral  and  religious  interests  of  society,  for  instance,  are  out 
of  the  sphere  of  law, — out  of  the  sphere  of  political  govern- 
ment; they  are  merely  left  to  individual  and  social  efforts, 
prompted  by  benevolence  and  conscience.  Not  only  are  such 
efforts  infinitely  more  benignant,  but  they  are  much  moro 


NEW  SERIES ;  VOL.  I.  133 


Powers  v.  Shepard. 


effectual  than  they  possibly  could  be  made  through  the  cum- 
brous machinery  of  State  or  any  other  political  government. 
The  rights  of  imperfect  obligation,  to  employ  a  legal  phrase, 
are  much  more  numerous  than  those  of  perfect  obligation. 
So  it  is  with  the  economic  interests  of  the  individuals  who 
compose  society.  Every  individual,  or  rather  the  great  major- 
ity of  individuals,  know  much  better  than  any  public  author- 
ity can  know,  what  price  he  should  give  for  the  various  com- 
modities of  necessity  or  luxury,  which  he  needs.  The  interests  . 
of  the  buyer  on  the  one  hand,  and  of  the  seller  on  the  other, 
will  be  much  more  likely  to  adjust  the  proper  price,  than  any 
intervening  authority  can  possibly  do :  on  the  contrary,  the 
latter  would,  inevitably,  produce  disturbance  and  confusion, 
if  not  distress,  as  similar  interference  did  in  the  markets  of 
Paris,  during  the  first  French  revolution.  I  hold,  therefore, 
that  the  exercise  of  such  power  by  the  government  was  never 
contemplated  by  the  framers  of  our  political  constitutions,  or 
by  the  people  who  ratified  them  ;  and  that  the  powers  of  the 
legislature  cannot  be  extended  so  far  as  to  dictate  to  individuals 
what  price  they  shall  give,  or  what  price  they  shall  receive, 
for  any  thing  which  they  may  want  to  buy  or  to  sell.  If  it 
possessed  this  power,  for  instance,  of  dictating  what  price  citi- 
zens should  give  for  any  article  of  dress,  it  could  prescribe 
what  kind  of  dress  they  should  wear ;  and  thus  we  may,  during 
any  legislative  session,  hear  that  we  had  returned  to  the 
days  of  sumptuary  laws.  Formerly,  in  England,  penal  laws 
were  enacted  by  its  omnipotent  Parliament,  to  restrain  ex- 
cess in  appearel, — chiefly  in  the  reigns  of  Edward  in., 
Edward  IV.,  and  Henry  VIII.,  against  piked  shoes,  short 
doublets,  and  long  coats;-  all  of  which,  Blackstone  tells  us, 
were  repealed  by  statute  (1,  Joe.  L,  e.  25).  But,  he  re- 
marks, as  to  excess  in  diet,  there  still  remains  one  ancient 
statute  unrepealed  (10  Edw\  3,  c.  3),  which  ordains  that  no 
man  shall  be  served  at  dinner  or  supper,  with  more  than  two 
courses,  except  upon  some  great  holidays,  there  specified,  in 
which  he  may  be  served  with  three. 

Can  we  believe  that  such  things,  in  any  age  of  the  common- 
wealths of  America  are  cognizable  by  laws,  or  that  the  people 
of  any  of  them  delegated  such  power  to  their  legislature.  No ; 
the  legislative  power  of  America  is  not  omnipotent  in  this 
Sense ;  all  regulations  relative  to  private  manners  and  habits, 


134      ABBOTTS'  PRACTICE  REPORTS. 

Powers  v.  Shepard. 

and  to  prices  and  expenses,  are  not  within  the  domain  of  civil 
law.  The  possession  of  such  power  belongs  alone  to  absolute 
governments,  or  to  Parliaments,  which  claim  omnipotence.  A 
power  so  infinite  is  inconsistent  with  the  character  and  design 
of  constitutional  republican  government.  All  the  political 
power  which  the  people,  in  their  sovereign  capacity,  can,  con- 
sistently with  this  character  and  design,  exercise,  has  been  de- 
legated to  the  legislature ;  but  nothing  more.  It  can  no  more 
prescribe  to  us  what  price  we  shall  pay  for  a  coat,  or  for  a  sub- 
stitute in  the  army,  than  it  can  prescribe  what  kind  of  shoes  we 
shall  wear,  or  how  many  courses  we  shall  have  for  dinner.  No 
government  possessing  such  power  could  be  called  free ;  and  yet 
in  framing  the  present  constitution,  the  people  declare  that  they 
establish  it  in  gratitude  "  to  Almighty  God  for  their  freedom." 

II.  Again,  even  if  the  legislature  possessed  this  power,  I  think 
an  act  of  this  kind,  so  far  as  it  interferes  with  individual  free- 
dom of  action,  should  be  strictly  construed.  Like  penal  acts, 
and  acts  in  favor  of  corporations  or  particular  persons,  acts  in 
derogation  of  common  right  should  not  be  extended  beyond 
their  express  words  or  clear  import.  This  act  prohibits  the  pay- 
ment of  a  greater  amount  than  three  hundred  dollars  for  a  one 
year  volunteer  or  substitute,  four  hundred  dollars  for  a  two 
years'  volunteer  or  substitute,  and  six  hundred  dollars  for  a  three 
years'  volunteer  or  substitute ;  that  is,  no  volunteer  or  substitute 
shall  receive  a  larger  amount  for  these  different  terms  of  service, 
than  the  respective  sums  mentioned. 

This'  action,  however,  is  not  to  recover  money  paid  to  volun- 
teers or  substitutes,  but  money  which  the  defendant  promised  to 
pay  the  plaintiff  for  furnishing  volunteers  or  substitutes.  Thia 
money,  it  is  to  be  fairly  presumed,  not  only  included  the  sums 
paid  to  the  volunteers  or  substitutes,  but,  also,  such  sum  as  would 
be  a  compensation  to  the  plaintiff  for  procuring  the  volunteers 
or  substitutes.  It,  certainly,  would  not  be  just  to  expect  that 
this  plaintiff  should  perform  services  without  some  compensation. 
Like  any  other  agent  or  servant  he  is  entitled  to  compensation  ; 
his  services  were  exceedingly  useful  to  the  plaintiff,  and  could 
not  be  rendered  by  him  without  considerable  labor  and  trouble ; 
and  the  difference  between  the  amount  of  the  bounty  allowed 
by  the  act  and  that  promised  to  be  paid  by  the  defendant,  may 
be  deemed  the  measure  of  the  plaintiff's  compensation.  It  does 


NEW  SERIES ;  VOL.  I.  135 

Lewis  v.  Randall. 

not  appear  in  the  complaint,  that  the  volunteers  or  substitutes 
received  more  than  the  act  allows. 

The  demurrer  must  be  overruled  with  costs,  with  liberty  to 
defendant  to  answer  within  twenty  days  on  payment  of  costs  of 
demurrer. 


LEWIS  against  RANDALL. 
Chenango  County  Court ;  Afarch,  1866. 

STAMPS   UPON   PROCESS. — AMENDMENT   OF   APPEAL. — CONSTITU- 
TIONAL LAW. 

The  court  to  which  an  appeal  is  taken  from  a  justice's  court  should  not  dis- 
miss the  appeal  upon  the  objection  that  the  notice  was  not  stamped,  as  re- 
quired by  the  United  States  Internal  Revenue  Law. 

The  provision  of  the  Code  of  Procedure  of  this  State,  allowing  amendments 
to  be  made  to  cure  the  omission  of  a  party  to  do  any  act  necessary  to  per- 
fect an  appeal  or  to  stay  proceedings  (Code,  §  327),  does  not  authorize 
affixing  a  United  States  Revenue  stamp  upon  the  notice  of  appeal,  after 
motion  to  dismiss  the  appeal  for  want  of  such  a  stamp. 

Process  on  appeals  from  justice's  courts,  or  other  courts  of  inferior  jurisdic- 
tion, to  a  court  of  record,  which,  by  the  Internal  Revenue  Law,  are  re- 
quired to  be  stamped,  are  not  void  if  not  stamped.  Congress  have  not 
constitutional  power  to  take  away  the  jurisdiction  of  a  State  court. 

Motion  to  dismiss  an  appeal. 

C.  L.  Tefft,  for  the  respondent. 
S.  Bundy,  for  the  appellant. 

II.  G.  PRINDLE,  COUNTY  JUDGE. — This  action  by  George  J.  R. 
lewis  against  Hezekiah  A.  Randall,  was  commenced  in  a  justice's 
court,  and  brought  by  appeal  to  the  Chenango  County  court. 
The  respondent  now  moves  to  dismiss  the  appeal  on  the  ground 
that  the  notice  of  appeal  was  not  stamped,  pursuant  to  the  Act 
of  Congress. 

The  portion  of  the  Act  of  Congress  relating  to  this  question  is 


136  ABBOTTS'  PEACTICE  REPORTS. 

Lewis  v.  Randall. 

as  follows :  "  Writs  or  other  process  on  appeals  from  justice's 
courts,  or  other  courts  of  inferior  jurisdiction,  to  a  court  of  record, 
fifty  cents." 

It  is  quite  clear  to  my  mind  that  it  was  the  intention  of  Con- 
gress to  require  a  stamp  to  be  affixed  to  the  process  by  which  a 
suit  is  removed  from  a  justice's  court  to  a  court  of  record.  "Unless 
such  stamp  is  affixed,  the  process  is  made  void  by  the  act  of 
Congress ;  and  if  void,  the  county  court  has  no  jurisdiction  of  the 
case. 

In  the  case  of  Whiteley  v.  Leeds,  in  the  Common  Pleas  of  the 
city  of  New  York,  the  court  held  that  it  was  necessary  that  the 
notice  of  appeal  should  be  stamped  ;  and  allowed  the  appellant 
to  affix  the  stamp  in  open  court,  under  section  327  of  the  Code 
of  Procedure,  which  provides  as  follows :  "  Where  a  party  shall 
give  in  good  faith  notice  of  an  appeal  from  a  judgment  or  order, 
and  shall  omit,  through  mistake,  to  do  any  other  act  necessary 
to  perfect  the  appeal  or  to  stay  proceedings,  the  court  may  per- 
mit an  amendment  on  such  terms  as  may  be  just." 

I  think  the  court,  in  this  case,  did  not  take  a  correct  view  of  the 
law.  The  above  section  of  the  Code  was  never  intended  to  reach  a 
case  of  this  kind.  The  Code  provides  certain  steps  to  be  taken, 
in  order  to  perfect  an  appeal,  and  if  the  appellant  should  bring 
the  appeal  in  good  faith,  and  by  mistake  should  neglect  to  do 
some  act  necessary  to  perfect  the  appeal,  the  court,  on  being 
satisfied  of  the  fact,  could,  under  the  above  section  of  the  Code, 
allow  time  to  supply  the  defect.  The  rule  was  adopted  with 
special  reference  to  the  rule  then  in  existence  in  regard  to  ap- 
peals, and  the  steps  necessary  to  be  taken  by  the  appellant  in 
order  to  perfect  his  appeal.  It  had  no  reference  to  the  Stamp 
Act  passed  by  Congress.  The  Code  was  adopted  years  before 
the  Stamp  Act  was  even  contemplated,  and  even  if  the  •  Code 
had  been  passed  subsequent  to  the  Act  of  Congress,  the  notice  of 
appeal  being  void,  could  not  be  made  effective  by  being  stamped 
in  open  court,  unless  authorized  by  the  Act  of  Congress.  The 
Act  of  Congress  provides  that  such  process,  unless  duly  stamped, 
is  void  and  of  no  effect.  It  is  not  merely  voidable,  but  abso- 
lutely void,  and  if  void,  no  act  of  a  State  court  could  make  it 
valid.  If  Congress  had  the  power  to  declare  the  process  of  a 
State  court  void  for  want  of  a  proper  stamp,  I  can  see  no  escape 
from  the  conclusion  that  the  appeal  must  be  dismissed  ;  and  the 
only  remaining  question  to  be  considered  is,  whether  Congress 


TsTEW  SERIES;  VOL.  I.  137 


Lewis  v.  Randall. 


has  authority  to  declare  the  process  of  a  State  court  void  for  the 
want  of  a  proper  stamp. 

In  determining-  this  question,  the  first  inquiry  arises  in  regard 
to  our  State  courts,  whether  they  exist  and  are  entirely  inde- 
pendent of  Congress  as  regards  the  question  of  process  and  juris- 
diction.     If  they  are  entirely  State  organizations,  and  can  in 
no  way  be  legitimately  interfered  with  by  Congress,  then  Con- 
gress can  no  more  interfere  with  their  jurisdiction  by  declaring 
a  process  void  for  want  of  a  stamp,  than  by  attempting  to  de- 
termine the  form  or  nature  of  a  process  to  be  issued  in  order  to 
acquire  j  urisdiction  in  a  particular  case.  Congress  has  no  power  to 
legislate  on  the  question  unless  the  same  is  authorized  by  the  Con- 
stitution. The  powers  of  Congress  are  delegated  by  the  Constitu- 
tion, and  article  10  provides  that  "The  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively,  or  to  the 
people."     The  government  of  the  United  States  is  a  derivative 
one,  and  can  claim  no  powers  which  are  not  granted  by  the 
Constitution,  either  in  express  terms,  or  by  necessary  implica- 
tion.     All  powers  net  delegated  to  it,  or  not  inhibited  to  the 
States,   are   reserved   to   them,   or  the   people.      The  powers 
bestowed   by   the   Constitution   upon   the   government  of  the 
United  States  are  limited  in  their  extent.      As  the  State  gov- 
ernments retained  the  right  to  make  all  such  laws   as   they 
might  think  proper  within  the  ordinary  powers  of  the  legisla- 
tures, if  not  inconsistent  with  the  powers  vested  exclusively  in 
the  Federal  government,  they  only  look  to  that  instrument  for 
restrictions  up  >n>  'and  not  for  grants  of  legislative  authority, 
whilst  the  national  legislature  is  dependent  entirely  upon  the 
provisions  of  the  Federal  Constitution  for  all  the  powers  which  it 
possesses,  and,  like  the  government  under  which  it  exists,  it  can 
exercise  no  powers  except  those  expressly  granted,  or  arising  by 
necessary  implication. 

Among  the  powers  expressly  delegated  to  Congress  is  the 
right  to  lay  and  collect  duties,  taxes,  imports  and  excises.  I 
think,  however,  that  there  are  certain  limitations  and  restric- 
tions to  the  exercise  of  this  right :  there  is,  perhaps,  no  limita- 
tion to  the  extent  of  the  right  so  far  as  the  individual  members 
of  the  government  are  concerned,  but  where  Congress  attempts 
to  carry  the  doctrine  to  the  extent  of  depriving  a  State  court  of 
jurisdiction,  it  is  quite  a  different  question,  and  one  of  much 


138  ABBOTTS'  PEACTICE  EEPOKTS. 

Lewis  v.  Randall. 

greater  magnitude.  There  is  a  palpable  distinction  between 
the  powers  of  Congress  and  those  possessed  by  the  legislatures  of 
the  respective  States.  The  legislatures  of  the  respective  States, 
independent  of  any  constitutional  restriction,  are  undoubtedly 
vested  with  unlimited  powers  of  legislation.*  The  decisions  of  Eng- 
lish courts,  of  questions  arising. under  their  Stamp  Act  have  little 
weight  as  precedents  in  determining  the  question  in  this  case, 
as  the  legislative  powers  of  that  government  are  not  restricted 
by  the  Constitution  in  this  respect.  Judge  STORY,  in  his  Com- 
mentaries on  the  Constitution,  in  speaking  of  the  rules  by 
which  that  instrument  should  be  interpreted,  among  other 
things,  says  :  "  One  important  rule  in  the  interpretation  of  the 
Constitution  is,  not  to  enlarge  the  construction  of  a  given  power 
beyond  the  fair  scope  of  its  terms,  merely  because  the  restric- 
tion is  inconvenient,  impolitic,  or  even  mischievous.  It  should 
never  be  lost  sight  of,  that  the  government  of  the  United  States 
is  one  of  limited  and  enumerated  powers  ;  and  that  a  departure 
from  the  true  import  and  sense  of  its  powers  \&pro  hinto  the  es- 
tablishment of  a  new  Constitution.  To  the  general  government 
are  assigned  all  those  powers  which  relate  to  the  common  in- 
terests of  all  the  States,  as  comprising  one  confederated  nation, 
while  to  each  State  is  reserved  all  those  powers  which  may  affect 
or  promote  its  own  domestic  interests,  its  prosperity,  its  policy, 
and  its  local  institutions"  within  the  above  rule. 

Let  us  again  advert  to  some  of  the  provisions  contained  in 
the  Constitution.  The  first  subdivision  of  section  eight,  arti- 
cle first,  of  the  Constitution,  before  alluded  to,  provides  that 
Congress  shall  have  power  "  to  lay  and  collect  taxes  duties, 
imports  and  excises."  Subdivision  nineteen  of  the  same  sec- 
tion provides  that  Congress  shall  have  power  "  to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution,  in  the  government  of  the  United  States, 
or  in  any  department  or  office  thereof."  It  is  quite  clear  that 
the  first  subdivision  quoted,  confers  no  authority  to  make  the 
process  of  a  State  court  void.  Laying  and  collecting  taxes  is 
one  thing,  and  declaring  process  void  another.  If  Congress 
possessed  the  power  to  pass  the  statute  in  question,  that  power 
was  derived  from  the  latter  subdivision  quoted.  But  can  it. 
be  said  to  be  necessary  and  proper  that  Congress  should  iuter- 

*  Compare  Powers  v.  Shepard,  Ante,  129. 


NEW  SERIES;   VOL.  I.  139 


Lewis  v.  Randall. 


fere  with  the  jurisdiction  of  a  State  court  in  order  to  "  lay  and 
collect  taxes,  duties,  imports  and  excises  ?"  I  think,  not.  Con- 
gress has  abundant  power  to  lay  taxes,  and  collect  taxes,  and 
raise  sufficient  money  for  all  government  purposes,  without 
laying  its  hands  upon  the  machinery  of  State  government.  It 
has  the  power  to  tax  the  people  in  their  capacity  of  citizens  of 
the  United  States,  all  that  they  are  able  to  bear,  and  all  that 
the  necessities  of  the  government  demand.  Indeed,  the  whole 
property  of  the  people  can  be  taken  away  by  the  levy  of  direct 
taxes,  and  by  taxing  their  products,  and  their  transactions 
with  one  and  another  as  citizens.  Wherefore  then  the  neces- 
sity for  Congress  to  invade  the  department  of  State  authority 
in  the  levy  and  collection  of  taxes !  It  could  not  have  been 
contemplated  by  the  framers  of  the  Constitution  that  the  gen- 
eral government  should  possess  this  authority.  That  instru- 
ment was  framed  clearly  and  unmistakably  upon  the  theory 
that  State  government  should  co-exist  with  the  general  gov- 
ernment, each  sovereign  and  independent  in  their  legitimate 
sphere  of  governmental  action  :  that  States  should  not  interfere 
with  the  functions  of  the  general  government,  and  that  the  gen- 
eral government  should  not  interfere  with  the  functions  of  the 
respective  States.  If  a  statute  of  the'United  States  is  allowed 
to  block  the  wheels  of  State  government,  the  harmony  and 
beauty  of  our  system  is  destroyed,  and  the  departments  of 
State  and  national  authority  are  so  intermingled  as  to  result 
in  interminable  confusion  and  uncertainty.  If  Congress  can 
declare  void  the  notice  of  appeal  by  which  a  cause  is  removed 
from  one  State  court  to  another,  unless  a  certain  stamp  is  af- 
fixed thereto,  it  can  upon  the  same  principle,  and  to  the  same 
extent,  interfere  with  every  process  and  proceeding  from  the 
commencement  of  an  action,  to  the  satisfaction  of  the  judg- 
ment, in  every  State  court,  from  the  highest  to  the  lowest.  It 
can  lay  hold  of  the  executive  and  legislative  departments  of 
State  machinery,  and  compel  from  them  obedience  to  its  power. 
It  can  make  State  laws  and  constitutions  void  unless  duly 
stamped,  and  can  compel  governors,  legislators  and  all  State 
officers  to  place  a  badge  of  inferiority,  in  the  shape  of  a  United 
States  Revenue  stamp,  upon  every  official  document  which  they 
are  called  upon  to  issue.  If  it  can  make  process  void  unless 
a  fifty  cent  United  States  revenue  stamp  is  affixed  to  it,  it  can 
make  it  void  unless  a  two  hundred  dollar  stamp  is  affixed,  and 


140  ABBOTTS'   PRACTICE  REPORTS. 

Lewis  v.  Randall. 

thus  practically  wipe  out  the  entire  jurisdiction  of  our  inferior 
courts.  Is  the  possession  of  such  authority  on  the  part  of  Con- 
gress consistent  with  the  independent  existence  of  State  govern- 
ments, or  the  spirit  of  the  Constitution,  which  clearly  recognizes 
such  independent  existence  ?  If  a  proposition  had  been  made 
in  the  convention  by  which  the  Constitution  was  framed,  to 
clothe  the  United  States  government  with  such  authority  over 
the  institutions  of  the  States,  who  believes  that  it  would 
have  been  adopted  ?  Would  the  States  have  ratified  such  a 
proposition  ?  If  not,  the  Constitution  should  not  now  be  extended 
by  construction  to  embrace  it.  It  would  'be  unwarrantably 
adding  to  the  Constitution,  rather  than  construing  it.  It  is 
equally  for  the  interest  of  all  that  the  division  line  of  State  and 
National  power  should  remain  as  defined  by  the  makers  of  the 
Constitution.  The  people  are  interested  in  the  preservation  of 
both  State  and  National  government ;  and  it  is  the  duty  of  those 
who  are  called  upon  to  pass  upon  the  validity  of  statutes  to  see 
to  it  that  the  one  does  not  invade  the  domain  of  the  other. 

It  would  hardly  be  contended  that  a  State  could  pass  a  law 
interfering  in  such  a  manner  with  the  jurisdiction  or  proceed- 
ings of  a  United  States  court ;  but  I  cannot  see  why  such  a  law 
would  not  be  as  valid  as  the  one  in  question. 

'  It  has  been  with  considerable  hesitation  that  I  have  attempted 
to  discuss  the  constitutional  question  involved  in  this  case.  I 
have  held  the  question  open  for  some  time  in  the  expectation 
that  some  one  of  the  higher  tribunals  of  our  State  would  decide 
it.  The  question  having  been  raised  in  this  case,  it  is  as  much 
my  duty  to  determine  it,  so  far  as  this  tribunal  is  concerned,  as 
to  determine  any  question  that  might  be  raised  in  regard  to  the 
construction  of  a  law  of  the  State.  Judge  KENT  lays  down  the 
rule  that  "  the  interpretation  or  construction  of  the  Constitution 
is  as  much  a  judicial  act,  and  requires  the  exercise  of  the  same 
legal  discretion,  as  the  interpretation  or  construction  of  a  law. 
To  contend  that  the  courts  of  justice  must  obey  the  requisitions 
of  an  act  of  the  legislature  when  it  appears  to  them  to  have 
been  passed  in  violation  of  the  Constitution,  would  be  to  contend 
that  the  law  was  superior  to  the  Constitution,  and  that  the 
judges  had  no  right  to  look  into  it,  the  Constitution,  and  regard 
that  as  the  paramount  law." 

The  construction  I  have  given  to  the  act  of  Congress  is  not 
entirely  without  precedent.  The  Supreme  Court  of  Indiana,  in 


NEW  SERIES  ;  VOL.   I.  141 

Beecber  v.  Ackerman. 

the  case  of  Warner  v.  Paul  (reported  4  American  Law  Reg- 
ister, 157),  in  a  well-considered  opinion,  held  substantially  the 
same  doctrine,  and  in  Watson  v.  Bryenth  (29  How.  Pr.,  357), 
Justice  BARNARD  held  the  same,  although  he  did  not  discuss  the 
question. 

The  appellant  having  complied  with  all  the  requirements  of 
the  Code  in  bringing  his  appeal,  and  as  I  am  of  the  opinion 
that  Congress  had  no  authority,  to  deprive  the  court  of  jurisdic- 
tion by  declaring  the  notice  of  appeal  void  for  the  want  pf  a. 
stamp,  the  motion  is  therefore  denied ;  but  the  question  is  of 
such  a  nature  that  I  think  it  should  be  denied  without  costs. 

Order  accordingly. 


BEECHER  against  ACKERMAK 

New  York  Superior  Court;  General  Term,  May,  1863. 

KELIEF  AGAINST  USUKY. — DISMISSAL  OF  COMPLAINT. — PLEADING. 

Where  an  usurious  loan  is  secured  by  a  pledge,  one  who  purchases  the 
thing  pledged  from  the  borrower,  and  agrees  to  pay  the  debt,  is  not  a 
borrower  within  the  meaning  of  the  statute  of  1837,  which  allows  bor- 
rowers on  usury  to  maintain  actions  for  relief  against  their  contracts,  with- 
out paying,  or  offering  to  pay,  the  principal  or  interest. 

But  in  an  action  by  such  a  purchaser  for  relief  from  the  usurious  contract, 
the  complaint  should  not  be  dismissed  at  the  trial  merely  because  it  does 
not  contain  an  offer  to  pay  what  is  equitably  due ;  but  he  may  have  judg- 
ment for  such  relief,  conditioned  upon  hia  making  such  payment,  with 
costs. 

Where,  after  such  a  transaction,  the  purchaser  of  the  securities  obtains  a 
further  usurious  loan  from  the  same  lender,  giving  one  note  for  the  total 
amount,  and  pledges  other  property  to  secure  the  whole,  the  property 
last  pledged  cannot  be  retained  by  the  lender  as  security  for  the  original 
loan. 

Where  securities  are  delivered  and  accepted  in  payment  of  a  usurious  loan, 
with  a  guaranty,  by  the  debtor,  of  the  payment  of  such  securities,  the 
debtor  cannot  recover  back  the  securities ;  but  the  guaranty  ia  void,  and 
he  may  compel  the  surrender  of  that. 


142  ABBOTTS'  PEACTICE  REPORTS. 

Beecher  v.  Ackerman. 

Appeal  by  the  plaintiff  from  a  judgment  for  the  defendant, 
entered  on  the  decision  of  Mr.  Justice  BARBOUK,  after  a  trial  be- 
fore him  without  a  jury,  in  March,  1862. 

The  action  was  brought  by  Luther  Beecher  against  George  Ack- 
erman. On  the  8th  of  March,  1856,  Alvin  Wilkins  applied  to 
the  defendant,  in  the  city  of  New  York,  for  a  loan  of  eleven 
thousand  dollars,  upon  the  representation  that  he  had  entered 
into  a  contract  with  The  Mineral  Point  Railroad  Company  to 
construct  its  road,  and  it  was  thereupon  agreed  between  them 
that  the  money  should  be  loaned  to  Wilkins  by  the  defendant, 
at  the  rate  of  seven  per  cent,  per  annum,  and  one  and  a  half 
per  cent,  per  month,  in  addition,  under  the  name  of  a  commis- 
sion, amounting  in  all  to  over  nine  hundred  dollars,  to  be  de- . 
ducted  from  the  eleven  thousand  dollars  at  the  time  of  the 
making  of  the  loan,  and  retained  by  the  "defendant;  that  Wil- 
kins should  give  his  note  to  the  defendant  for  the  eleven  thous- 
and dollars,  payable  with  interest,  four  months  from  date,  and 
should  collaterally  secure  the  same  by  an  assignment  and 
transfer  to  the  defendant  of  certain  bonds  issued  by  the  County 
of  Iowa,  in  the  State  of  Wisconsin,  to  the  amount  of  twenty-two 
thousand  dollars,  .then  held  by  Wilkins  ;  all  of  which  was  then 
done". 

In  June,  of  the  same  year,  the  plaintiff  and  Wilkins,  together, 
called  upon  the  defendant,  and  stated  to  him  that  the  plaintiff 
had  purchased  the  interest  of  Wilkins  in  the  railroad  contract, 
and  in  all  his  property  connected  with  it,  including  the  pledged 
bonds,  and  had  assumed  the  payment  of  his  debt  to  the  de- 
fendant for  his  loan ;  and,  at  the  same  time,  an  application  was 
made  by  the  plaintiff  to  the  defendant  for  loans  to  be  made  by 
the  latter  to  him.  An  agreement  was  thereupon  made  between 
the  plaintiff  and  the  defendant,  to  the  effect  that  the  latter 
should  lend  to  the  former  sums  of  money,  from  time  to  time,  a8 
they  might  be  wanted,  upon  the  plaintiff's  promissory  or  stock 
notes,  secured  by  the  pledge  of  Iowa  County  bonds,  or  drafts  of 
the  Mineral  Point  Railroad  Company,  and  that  the  plaintiff 
should  allow  and  pay  to  the  defendant  t\yo  per  cent,  per  month 
for  the  use  of  the  money  so  loaned,  either  in  money  or  "by  giv- 
ing other  notes  for  such  percentage.  It  was  also  further  under- 
stood between  them,  that  the  plaintiff  sho'uld  assume  the 
payment  of  Wilkins'  note  for  eleven  thousand  dollars ;  and  that 


NEW  SERIES;  VOL.  I.  143 

Beeober  v.  Ackerman. 

the  twenty-two  thousand  dollars  of  Iowa  county  bonds  in  the 
hands  of  the  defendant,  and  subject  to  his  lien,  had  been  pur- 
chased from  Wilkins  by  the  plaintiff. 

Under  and  in  pursuance  of  this  agreement,  the  defendant, 
prior  to  November,  1857,  loaned  to  the  plaintiff,  at  sundry 
times,  various  sums  of  money  to  a  large  amount,  receiving  from 
him,  upon  the  making  of  such  loans,  for  the  use  thereof,  the 
percentage  so  agreed  upon,  either  in  money  or  notes,  and  taking 
therefor  the  plaintiff's  notes,  collaterally  secured  as  agreed 
upon.  When  Wilkins'  note  for  eleven  thousand  dollars  became 
due,  that  note  was  extended  for  thirty  days,  and  again  for  sixty 
days ;  the  plaintiff,  upon  each  occasion,  paying  or  accounting  to 
the  defendant  for  the  extension,  at  the  rate  of  two  per  cent,  per 
month  ;  and  upon  maturity  of  the  sixty  days'  notes,  a  note  of 
the  plaintiff  for  twelve  thousand  dollars,  payable  to  the  defend- 
ant four  months  from  date,  was  substituted  in  place  of  the  Wil- 
kins notes ; — upwards  of  nine  hundred  dollars  of  which  being 
for  the  interest  upon  that  twelve  thousand  dollar  note,  and  the 
difference  being  paid  or  accounted  for  by  the  defendant  to  the 
plaintiff. 

In  April,  1857,  the  twelve  thousand  dollar  note,  which  had 
been  renewed  upon  the  same  terms,  for  sixty  days,  together 
with  another  note,  which  had  been  given  to  the  defendant,  by 
the  plaintiff,  for  loans  made  to  himself  under  the  agreement, 
were  consolidated  in  one  note,  then  given  by  the  latter  to  the 
former  at  sixty  days,  including  interest  to  maturity,  at  the  rate 
of  two  per  cent,  per  month  ;  and  in  July  following,  a  new  note 
at  sixty  days,  for  thirty  thousand  dollars,  was  given  to  the  de- 
fendant by  the  plaintiff  in  renewal  of  that  twenty-eight  thousand 
dollar  note,  being  the  amount  of  the  last  mentioned  note,  with 
interest  at  the  rate  of  two  per  cent,  per  month,  and  the  amount 
of  a  check  then  given  to  the  plaintiff  by  the  defendant  for  the 
difference,  for  the  payment  of  which  note  the  defendant  then 
held,  as  collateral  security,  sundry  bonds  of  the  Mineral  Point 
Railroad  Company,  to  the  amount  of  sixteen  thousand  five  hun- 
dred dollars,  and  eleven  thousand  dollars  in  bonds  of  the  County 
of  Iowa,  which  had  been  put  in  his  hands,  by  the  plaintiff,  and 
also  the  Iowa  County  bonds  for  twenty-two  thousand  dollars,  so 
originally  pledged  by  Wilkins,  making  in  all  the  sum  of  forty- 
nine  thousand  five  hundred  dollars. 

Other  loans,  which  may  be  considered  as  a  distinct  series, 


144  ABBOTTS'  PRACTICE  REPORTS. 

Beecher  v.  Ackerman. 

were  also  made  to  the  plaintiff  by  the  defendant  from  time*  to 
time,  wider  their  usurious  agreement,'  for  which  sundry  notes,  in- 
cluding interest  upon  the  sums  loaned,  after  the  rate  of  two  per 
cent,  per  month,  were  given  by  the  plaintiff,  collaterally  secured 
by  drafts  drawn  by  the  president  of  the  Mineral  Point  Railroad 
Company  upon  its  treasurer,  payable  at  future  dates.  In 
November,  1857,  all  the  last-mentioned  notes,  with  the  interest, 
were  found  to  amount  to  thirty-five  thousand  eight  hundred  and 
eighty-two  dollars  ;  and  it  was  then  agreed  between  the  plain- 
tiff and  the  defendant,  that  those  notes  should  be  given  up  and 
cancelled  ;  that  the  plaintiff  should  give  his  promissory  note  at 
six  months  to  the  defendant  for  the  eight  hundred  and  eighty- 
two  dollars  ;  that,  for  the  balance,  the  defendant  should  receive 
from  the  plaintiff,  and  hold  in  absolute  ownership,  nine  certain 
drafts,  dated  and  payable  at  Mineral  Point,  in  the  State  of 
Wisconsin,  drawn  by  the  president  of  the  Railroad  Company 
upon  its  treasurer,  and  accepted  by  him,  amounting  in  the 
aggregate,  to  thirty-five  thousand  dollars ;  and  that  the  plaintiff 
should,  by  a  separate  instrument  in  writing,  guaranty  the  pay- 
ment of  such  drafts.  The  plaintiff's  notes  were  there  upon  given 
up,  and  cancelled,  the  drafts  were  delivered  to  the  defendant, 
and  the  guaranty  executed  to  him.  The  note  for  eight  hundred 
and  eighty-two  dollars  was  subsequently  paid.  Several  months 
after  this  settlement,  an  agreement  was  made  between  the  de- 
fendant and  the  Railroad  Company,  whereby  the  time  of  pay- 
ment of  those  drafts  was  extended  by  the  defendant,  and,  in 
consideration  thereof,  the  company  placed  in  his  hands  further 
securities  as  collateral. 

The  plaintiff  brought  this  action  to  procure  the  delivery  and 
cancellation  of  his  thirty  thousand  dollar  note,  and  of  his  writ- 
ten guaranty,  and  to  obtain  possession  of  the  county  bonds,  and 
the  bonds  and  acceptances  of  the  railroad  company,  on  the 
ground  of  the  usury  in  the  loan.  His  complaint  set  up,  sub- 
stantially, the  foregoing  facts ;  but  did  not  allege  that  he  has 
paid,  or  offered  to  pay,  the  principal  sums  loaned,  and  repre- 
sented by  such  securities,  or  any  part  of  it. 

The  judge  before  whom  the  cause  was  tried  held  that  the 
plaintiff  could  not  be  considered  as  a  borrower,  within  the 
meaning  of  the  statute,  of  the  eleven  thousand  dollars  loaned  by 
the  defendant  to  Wilkins ;  and  that  as  he  had  not  offered  to  repay 
that  sum  with  legal  interest  he  was  not  entitled,  either  as  the 


NEW  SERIES;  VOL.  I.  145 


Beecher  v.  Ackerman. 


owner  of  the  Iowa  county  bonds,  deposited  with  the  defendant 
by  Wilkins,  or  by  virtue  of  any  substitution  in  place,  or  subro- 
gation to  the  rights,  of  the  latter,  or  otherwise,  to  the  relief  prayed 
for,  so  far  as  concerned  that  eleven  thousand  dollars,  or  the  securi- 
ties pledged  to  secure  its  payment ;  and  inasmuch  as  that  eleven 
thousand  dollars,  with  the  usurious  interest  upon  it,  after  a  certain 
date,  was  included  in  the  note  for  thirty  thousand  dollars  given  by 
the  plaintiff  upon  settlement,  and  as  the  collaterals  placed  in  the 
hands  of  the  defendant  were  held,  as  an  entirety,  as  security  for  the 
payment  for  the  whole  of  that  note,  so  that  the  Court  could  not 
determine  what  part  or  proportion  of  the  securities  was  held 
for  the  payment  of  the  eleven  thousand  dollars,  and  what  portion 
was  intended  to  secure  the  remaining  nineteen  thousand  dollars, 
even  if  it  were  proper  to  make  such  severance,  the  plaintiff 
could  not  in  this  action  have  any  relief  touching  that  note,  or 

v  o  / 

the  collaterals  held  by  the  defendant  as  security  for  its  payment. 

In  respect  to  the  other  series  of  loans,  terminating  in  the 
transfer  to  the  defendant  of  the  drafts  of  the  railroad  company, 
the  judge  held  that  the  transfer  by  the  plaintiff  to  the  defendant  of 
the  drafts  of  the  railroad  company  to  be  held  by  him  absolutely 
as  owner  ;  the  plaintiff's  separate  written  guaranty  of  the  pay- 
ment of  those  drafts-;  andthe  giving  up  and  cancelling  of  the  thir- 
ty-five thousand  dollar  note,  in  consideration  of  such  absolute  trans- 
fer and  guaranty,  operated  as  a  payment  and  extinguishment  of 
that  note,  and  terminated  the  relation  theretofore  existing  be- 
tween the  parties  as  borrower  and  lender ;  and  hence  that  the 
plaintiff  was  not  entitled  to  the  relief  granted  by  the  statute. 

In  accordance  with  this  decision  a  judgment  was  entered  dis- 
missing the  complaint  with  costs. 

James  C.  Carter,  for  plaintiff  appellant. — I.  The  plaintiff 
was  at  least  entitled  to  a  decree  that  the  note  should  be  surren- 
dered and  cancelled,  and  prosecution  on  it  enjoined. 

This  point  is  not  answered  by  saying  that  the  plaintiff  had  a 
perfect  defence  at  law  to  the  note.  This  objection  should  have 
been  insisted  on  in  the  answer.  The  defendant  waived  it  by 
putting  his  defence  upon  the  merits  alone  (Gilbert's  Practice 
in  Chancery,  p.  220 ;  Ludlow  v.  Simon d,  2  Caines*  Cases  in 
Error,  40 ;  Grandin  v.  Leroy,  2  Paige,  509  ;  Fulton  Bank  v.  N. 
Y.  &  Sharon  Canal  Co.,  4  Paige,  132 ;  Gumming  v.  The  Mayor, 
«fec.,  11  Paige,  596  ;  Hawley  v.  Cramer,  4  Cowen,  726 ;  Under- 
tf.  S._ VOL.  I.— 10. 


146  ABBOTTS'  PEACTICE  EEPOKTS. 

Beecher  v.  Ackerman. 

hill  v.  Van  Cortlandt,  2  Johns.  Oh.,  339;  Truseott  v.  King,  2 
Seld.,  147  ;  Leroy  v.  Platt,  4  P<z^«,  77  "Wiswall  u  Hall,  3  Paige, 
313). 

II.  He  was  also  entitled  to  a  decree  to  tlie  same  effect  in  re- 
ference to  the  written  guaranty  and  his  own  note  for  eight  hun- 
dred and  eighty-two  dollars. 

IH.  The  plaintiff  is  certainly  entitled  to  a  decree,  that  the 
county  bonds,  and  the  railroad  mortgage  bonds  pledged  by  him- 
self to  secure  the  payment  of  the  moneys  borrowed  by  himself 
from  the  defendant,  should  be  restored  to  him,  or  that  the  de- 
fendant account  to  him  for  the  proceeds,  or  the  value  of  them, 
in  case  he  has  parted  with  them. 

IV.  Without  reference  to  the  provisions  of  the  Revised 
Statutes,  or  the  Act  of  1837,  but  upon  the  general  principles  of 
equity,  a  court  of  chancery  would  never  have  imposed  upon 
the  plaintiff  as  a  condition  of  granting  him  its  relief  in  respect 
of  the  particular  securities  which,  he  himself  had  pledged  to 
secure  the  loans  to  himself,  the  payment  of  what  was  due  on  the 
Wilkins  loans.  A  multo  fortiori  should  such  a  condition  not 
now  be  imposed. 

Y.  But  the  plaintiff  was  entitled  to  a  decree  for  the  cancel- 
lation of  the  thirty  thousand  dollar  note  of  July  30th,  1857, 
and  the  surrender  of  all  the  securities  mentioned  in  it,  for  the 
reason  that  he  was  the  "  borrower "  as  to  all  the  loans  em- 
braced in  it.  And  this  on  the  assumption  that  the  "Wilkins 
loans  were  never,  in  fact,  paid. 

1.  The  term  "  borrower,"  in  the  provisions  of  the  R.  S.  and 
in  the  statute  of  1 837,  is  to  be  construed  to  embrace  a  surety 
liable  on  the  original  contract. 

This  construction  proceeds  upon  the  reasonable  ground  that 
term  "  borrower  "  is  used  as  the  correlative  of  "lender"  to 
indicate  the  party  liable  on  the  contract.  (Perrine  v.  Striker, 
7  Paioe,  598  ;  Cole  v.  Savage,  10  Id.,  583  ;  Post  v.  Bank  of 
Utica,  7  mil,  391  ;  Morse  v.  Hovey,  9  Paige,  197;  Hunger- 
ford's  Bank  v.  Dodge,  30  Barb.,  626). 

YI.  But  further,  the  plaintiff  was  the  "  borrower  "  as  to  all 
the  loans  embraced  in  the  thirty  thousand  dollar  note,  in  the 
strictest  and  narrowest  sense  which  can  be  given  to  that  term. 

YII.  If  it  were  necessary  for  our  purpose  to  maintain  that 
the  loan  to  "Wilkins  was  in  this  manner  actually  paid,  we 
should  not  hesitate  to  do  so.  Should  the  defendant  now  bring 


NEW  SERIES ;  VOL.  I.  147 

Beecher  v.  Ackerman. 

an  action  against  Wilkins  in  any  form  for  the  amount  of  the 
eleven  thousand  dollars,  a  plea  of  payment  would  be  abund- 
antly sustained  by  proof  of  the  facts  found  by  the  Special 
Term. 

VIII.  We  may  concede  that  by  the  transaction  of  November 
2d,  1857,  the  relation  of  borrower  and  lender  between  the 
plaintiff  and  the  defendant,  as  to  the  loans  made  on  the  accept- 
ances, was  terminated  ;  but  this  makes  the  conclusion,  which 
we  think  has  been  entirely  established  on  other  grounds,  quite 
irresistible,  namely,  that  the  Wilkins  loan  was  extinguished 
by  the  transaction  of  October  loth,  1856,  and  that  by  neces- 
sary consequence,  the  plaintiff  was  the  "  borrower"  as  to  all 
the  loans  embraced  in  the  thirty  thousand  dollar  note  of  July 
30th,  1857,  and  is  entitled  to  have  it  cancelled,  and  to  have  the 
securities  pledged  for  its  payment  restored,  and  an  account  of 
the  proceeds  or  value  of  such  as  the  defendant  has  parted 
with. 

IX.  It  follows  from  this,  that  the  judgment  appealed  from 
should  be  reversed ;   and  as  this  result  is  reached  without 
questioning  the  conclusions  of  the  Court  below  on  matters  of 
fact,  the  plaintiff  is  entitled  to  a  decree  to  the  above  effect, 
without  a  new  trial  (Marquat  v.  Marquat,  12  N.  Y.  [2  Kern.'], 
336  ;  Hannay  v.  Pell,  3  K  D.  Smith,  432). 

David  Dudley  Field,  for  defendant  respondent. — I.  There 
are  two  fundamental  rules  of  courts  of  equity,  which  should 
prevent  the  plaintiff  from  recovering  in  this  action : 

The  first  is,  that  when  a  plaintiff  seeks  equity,  he  must  first 
do  equity  ;  and  the  second,  that  he  cannot  come  into  equity,  if 
his  remedy  is  complete  at  law  (1  Story's  Equ.  Jurisp.,  §  33, 
49,  64,  e. ;  WillarcVs  Equ.  Jurisp.,  44  to  49). 

II.  The  statute  of  1837  does  not  give  a  right  to  come  into  a 
court  of  equity  if  there  was  no  right  before.  It  only  dispen- 
ses, in  favor  of  a  borrower,  with  one  of  the  conditions  on 
which  he  could  obtain  relief,  that  is  to  say,  that  one  which  re- 
quired him  to  offer  to  repay  the  money  borrowed,  before  he 
could  obtain  a  recognition  from  the  court  (Act  of  1837,  chap. 
430,  §  3,  4,  5 ;  Minturn  v.  The  Farmers'  Loan  and  Trust  Co.,  3 
Corns.,  498 ;  referring  to  and  approving  Perrine  v.  Striker,  7 
Paige^  598 ;  Morse  v.  Hovey,  9  Paige,  197 ;  Post  v.  Bank  of 
Utica,  7  Hill,  391  [approved,  2  Corns.,  131],  in  which  the 


148  ABBOTTS'  PKACTICE  REPORTS. 

Beecher  v.  Ackerman. 

contrary  decision  in  the  case  of  Cole  v.  Savage,  10  Paige,  583, 
is  overruled  ;  Bonghton  v.  Smith,  26  Barb.,  635). 

III.  As  to  the  eleven  thousand  dollars,  borrowed  by  Wil- 
kins,  the  plaintiff  is,  by  his  own  showing,  not  a  borrower.     He 
is   therefore   not   within   the   statute  of  1837,  and  must  do 
equity,  if  he  would  have  equity.    To  the  extent,  therefore,  of 
eleven  thousand  dollars,  with  the  interest  on  it,  the  plaintiff 
can  sustain  no  action  here  without  offering  to  repay.    And  in- 
asmuch as  that  sum  is  included  in  the  thirty  thousand  dollar 
note,  and  lie  made  no  offer  of  repayment,  he  was  properly  de- 
nied relief  as  to  that  note   (Rexford  v.  Widger,  2  Comst.,  131  ; 
Sands  v.  Church,  2  Seld.,  317;  Schermerhorn  v.  Talman,  14_Z7. 
JT.,  126  ;  Curtis  v.  Leavitt,  15  Id.,  254). 

IV.  If  the  plaintiff's  allegations  were  true,  he  had  a  perfect 
defence  against  any  action  which  could  be  brought  against 
him,  and  a  right,  by  a  legal  action,  to  recover  back  any  of  the 
securities  if  the   pledge   of  them   was   really  illegal   (Caus- 
land  v.  Davis,  4  Bosw.,  619). 

In  such  actions  the  parties  would  not  lose  their  constitu- 
tional right  of  trial  of  jury  (Schroeppel  ?;.  Corning,  2  Stld.j 
107). 

When  this  action  was  brought,  the  thirty  thousand  dollar 
note  and  the  thirty-five  thousand  dollars  of  acceptances  had 
been  long  past  due,  and  therefore  could  not  be  passed,  so  as  to 
give  a  holder  any  new  rights.  This  consideration  of  itself  was 
sufficient  for  dismissing  the  complaint  (Folsom  v.  Blake,  3 
Edwd.  Ch.  JR.,  442  and  445  ;  Vilas  v.  Jones,  1  Corns.,  278). 

V.  The  nine  acceptances  being  dated  and  made  payable  in 
Wisconsin  are  governed  by  the  laws  of  that  State  (Berrien  v. 
Wright,  26  JBarb.,  208  ;  Cutler  v.  Wright,  22  JT.  Y.,  474  ;  Potter 
v.  Tallman,  35  Barb.,  182),  and  by  that  are  presumed  to  be  valid. 
If  that  law  prohibited  them,  it  should  have  been  proved. 

VI.  These  acceptances  being,  moreover,  given  in  payment, 
cannot  be  recovered  back. 

VII.  The  plaintiff's  guarantee  given  for  these  acceptances 
must  follow  the  fate  of  the  principal  obligations  (Scott  v.  John- 
son, 5  Bosw.y  213). 

VIII.  The  same  rule  applies  to  the  county  and  second  mort- 
gage bonds  held  as  collateral  for  the  note.     If  the  note  cannot 
be  obtained  by  the  plaintiff  in  this  action,  neither  can  the  col- 
laterals. * 


NEW  SERIES;  VOL.  I.  .     149 

Beecher  v.  Ackerman. 

BY  THE  COURT. — BOSWORTH,  CH.  J. — I.  The  eleven  thousand 
dollars  first  loaned  were  borrowed  by  Wilkins ;  Beecher  was 
not  originally  connected  with  the  loan  as  principal,  agent,  or 
surety.  The  plaintiff,  subsequently  to  the  loan,  bought  of 
"Wilkins  the  interest  of  the  latter  in  the  contract  to  construct 
the  Mineral  Point  Railroad ;  and  the  securities  originally 
pledged  to  secure  the  payment  of  the  eleven  thousand  dollars, 
and  assumed  the  payment  thereof,  and  so  informed  the  defend- 
ant. 

The  plaintiff,  therefore,  was  not,  in  fact,  a  borrower  from  the 
defendant  of  the  eleven  thousand  dollars ;  nor  is  he  a  borrower 
of  it  within  the  meaning  of  the  Act  of  1837  (chap.  430  ;  Scher- 
merhorn  v.  Talman,  14  N.  Y.,  93,  126,  131). 

He  cannot  reclaim  those  securities  without  paying  the  eleven 
thousand  dollars  and  interest  thereon ;  and  by  assuming  the 
payment  of  it,  as  part  of  his  contract  of  purchase,  is  personally 
liable  to  pay  it  (Hartley  v.  Harrison,  24  N.  Y.,  170 ;  Burr  v, 
Beers,  Id.,  178 ;  and  see  Murray  v.  Judson,  5  Seld.,  73). 

II.  The  complaint  should  not  have  been  dismissed  at  the  trial 
merely  because  it  did  not  contain  an  offer  to  pay  the  eleven 
thousand  dollars.      The  plaintiff  was  entitled  to  a  judgment 
that,  on  paying  that  sum  with  interest  and  the  costs  of  the  ac- 
tion, the  securities  originally  pledged  for  the  payment  of  it 
should  be  surrendered  to  him  (Schermerhorn  v.  Talman,  supra, 
129,  142  and  143). 

III.  The  securities  subsequently  pledged,  as  well  to  secure  a  usu- 
rious loan  made  at  the  time  of  the  pledge,  as  the  original  loan  of 
eleven  thousand  dollars,  cannot  be  retained  as  security  for  the  pay- 
ment of  the  eleven  thousand  dollars.     The  taint  of  usury  destroys 
the  whole  security ;  makes  the  contract  void  in  toto,  and  in 
every  of  its  parts.      The  plaintiff  has  an  unqualified  right  to  a 
restoration  of  all  such  securities  (Rice  v.  Welling,  5  Wend.,  595  : 
Jackson  v.  Packard,  6  Id.,  415 ;  Hammond  v.  Hopping,  13  ld>t 
505).     The  cases  last  cited  are  decisive,  that  the  note  for  thirty 
thousand  dollars  is  void.     It  should  be  given  up. 

IV.  There  is  no  consideration  for  the  guaranty  except  the 
usurious  loans,  in  payment  of  which  the  acceptances  to  which 
the  guaranty  relate,  were  received.      The   acceptances   them- 
selves being  delivered  and  accepted  as  payment,  the  defendant 
has  a  right  to  retain  them.      The  obligation  or  note  of  the 
plaintiff  for  the  sum  thus  paid,  if  received  alone,  would  be 


150 ABBOTTS'  PRACTICE  EEPOETS. 

Foster  v.  Wood. 

clearly  void  under  the  decisions  above  cited.  It  is  difficult  to 
perceive  that  a  guaranty  of  the  payment  of  the  notes,  received 
in  payment,  is  not  as  clearly  void.  That  must  be  surrendered. 

The  judgment  must  be  modified  to  conform  to  these  views, 
and,  as  thus  modified,  affirmed.  If  the  parties  cannot  agree 
what  securities  were  originally  pledged  to  secure  the  payment 
of  the  eleven  thousand  dollars  only,  so  as  to  specify  them  in  the 
judgment  to  be  entered  hereon,  there  must  be  a  reference  to  as- 
certain and  identify  them. 

No  costs  of  this  appeal  will  be  given  to  either  party.  Neither 
party  has  wholly  succeeded  on  the  appeal. 


FOSTEK  against  WOOD. 
New  York  Common  Pleas  /  General  Term,  January,  1866. 

SUMMONS. — AMENDMENT. — JUDGMENT  AGAINST  JOINT  DEBTORS. — 

ENFORCING  JUDGMENT  AGAINST  DEBTORS'  PERSONAL 

REPRESENTATIVES. 

The  omission  to  serve  a  copy  of  the  complaint  together  with  the  summons, 
where  the  summons  is  in  the  form  appropriate  for  serving  both  together, 
and  to  state  in  the  summons  the  place  of  filing  the  complaint,  does  not 
affect  the  validity  of  the  judgment  entered  thereon.  It  is  amendable. 

Where  the  action  is  against  joint  debtors,  a  part  of  whom  only  are  served, 
such  defect  in  the  summons  is  no  reason  for  dismissing  proceedings  to 
enforce  the  judgment  against  those  not  served. 

A  judgment  entered  against  several  joint  debtors  upon  service  of  summons 
upon  only  a  part  of  them,  is  a  judgment  in  form  only,  as  against  those  not 
served. 

The  defendants  not  served  are  not  "judgment  debtors"  within  the  meaning 
of  the  provision  of  the  Code  of  Procedure  (§  380),  which  authorizes  sum- 
moning the  representatives  of  a  deceased  judgment  debtor  to  show  cause 
why  the  judgment  should  not  be  enforced  against  his  estate  in  their  hands. 

The  proper  remedy  of  the  judgment  creditor  in  such  a  case,  is  to  present  hia 
demand  to  the  executors  or  administrators,  and  if  they  refuse  to  pay  it,  or 
to  refer  the  claim,  to  bring  his  action  thereon. 

Proceedings  to  enforce  a  judgment  against  the  representativea 
of  a  deceased  defendant. 


NEW  SEEIES;  VOL.   I.  151 

Foster  v.  Wood. 

The  plaintiff,  Amasa  S.  Foster,  summoned  Rufus  H.  Wood, 
administrator,  and  Sarah  E.  Messer,  administratrix,  of  Willard 
Messer,  deceased,  to  show  cause  why  a  judgment  he  had  recov- 
ered should  not  be  enforced  against  the  estate.  The  facts  are 
fully  stated  in  "the  opinion.  The  case  was  argued  at  General 
Term,  in  October,  1863,  the  first  time.  Later,  a  motion  was 
made  for  a  re-argument,  which  was  granted.  It  was  again 
argued  in  March,  1865. 

Augustus  F.  Smith,  for  the  appellant. 
John  M.  Emerson,  for  the  respondent. 

BY  THE  COURT. — DALY,  F.  J.* — An  action  was  brought  by 
the  plaintiff  against  William  Leavenworth  and  Willard  Messer, 
in  the  life  time  of  Messer,  upon  a  joint  obligation  entered  into 
by  them,  in  which  action  Leavenworth  alone  was  served  with 
process,  and  a  judgment  was  entered  up  against  both,  in  con- 
formity with  the  provisions  of  the  statute  in  relation  to  joint 
debtors  (2  R.  S.,  377 ;  Code,  §  136).  After  the  entry  of  the 
judgment,  Messer  died,  and  the  plaintiff  summoned  his  personal 
representatives,  the  defendants,  to  show  cause  why  the  judg- 
ment should  not  be  enforced  against  the  estate  of  Messer,  in 
their  hands,  under  the  376th  section  of  the  Code,  which  author- 
izes such  a  proceeding  in  case  of  the  death  of  a  judgment 
debtor  after  judgment.  The  defendants,  in  their  answer,  first 
denied  the  existence  of  any  judgment,  and  then,  as  respects 
Messer,  averred  that  he  was  not  a  judgment  debtor ;  that  as  he 
had  never  been  served  with  process,  and  had  never  appeared  in 
the  action,  the  judgment  was  not  a  judgment  against  him,  except 
in  form.  The  matter  was  referred  to  a  referee,  and  he  found, 
1st.  That  the  summons  served  upon  Leavenworth  was  irregular, 
as  it  was  in  the  form  prescribed  by  law  f?r  the  case  in  which  a 
copy  of  the  complaint  is  served  with  the  summons,  and  that  no 
complaint  was  served  with  it,  nor  did  it  state  where  the  complaint 
would  be  filed.  2d.  That  Messer  was  not  a  judgment  debtor  of 
the  plaintiff,  and  that  the  judgment  was  not  a  judgment  against 
him,  except  in  form. 

The  omission  to  serve  with  the  summons  a  copy  of  the  com- 
plaint, or,  no  complaint  having  been  served,  to  state  in  the  sum- 
mons where  it  was  or  would  be  filed,  did  not  render  the  judg- 

*  Present,  DALY,  F.  J.,  and  BRADY  and  CABDOZO,  JJ. 


152      ABBOTTS'  PRACTICE  REPORTS. 

Foster  v.  Wood. 

merit  void.  It  was  an  irregularity,  of  which  advantage  should 
be  taken  by  motion,  for  the  court  acquired  jurisdiction  by  the 
service  of  the  summons,  and  a  defect  like  this,  in  the  form  of  it, 
was  amendable  (2  It.  S.,  424 ;  Hallett  v  Righters,  13  How.  Pr., 
43 ;  Pequelet  v.  Darian,  2  Hill,  584 ;  Martin  v.  Eanonse,  2  Abb. 
Pr.)  393 ;  Cook  v.  Dickerson,  1  Duer,  679 ;  Keeler  v.  Betts,  3 
Code  .Z?.,  183  ;  Bearson  v.  Earl,  IT  Johns.,  64;  Tidd's  Practice, 
$th  Lond.  Ed.,  130,  1032;  Graham's  Practice,  2d  ed.,  132,665). 
It  was  not  a  matter  of  which  these  defendants  could  avail  them- 
selves in  this  proceeding,  and  afforded  no  reasons  for  dismiss- 
ing it. 

As  respects  the  second  ground  of  defence,  that  Messer  was 
not  a  judgment  debtor,  I  think  the  referee  decided  correctly. 
It  was  held  in  Oakley  v.  Aspinwall  (4  N~.  Y.,  513),  that  an 
attachment  against  a  non-resident  debtor  could  not  be  sustained 
upon  the  petition  of  the  attaching  creditor,  stating  that  he  had 
a  demand  against  the  debtor  arising  upon  a  judgment,  where 
it  appeared  that  the  judgment  was  entered  up,  as  authorized  by 
the  Revised  Statutes  (2  JR.  £,  377)  against  the  defendant  as  a  joint 
debtor, without  the  service  of  process  upon  him.  The  ground  taken 
by  Justices  BKONSON  and  MULLETT,  was  that  the  judgment,  a? 
respects  the  debtor  not  served,  had  no  other  effect  than  the  stat- 
ute gives  it,  which  is  that  it  may  be  collected  out  of  the  personal 
property  owned  by  him  jointly  with  the  defendant,  or  any  of  the 
defendants  served.  That  for  all  other  purposes  it  was  not  even 
vrima  facie  evidence  of  any  indebtedness  on  his  part.  That  it 
created  no  liability,  and  was  a  judgment  merely  in  form,  and 
though  Justice  JEWETT  thought  that  the  intention  of  the  Legis- 
lature was  to  allow  a  remedy  (an  action)  in  form  upon  it,  yet  it 
had  no  force  or  effect  as  evidence  of  the  plaintiff's  demand 
against  the  defendant  not  served. 

The  Code  of  Procedure  (§  136  has  provided  for  the  manner 
in  which  a  judgment  may  be  entered  against  joint  debtors,  and 
enforced  against  the  joint  property  of  all,  but  it  has  not  repealed 
the  provisions  of  the  Revised  Statutes,  which  declare  how  far 
such  a  judgment  shall  be  evidence  of  liability.  It  has  provided 
(§  375)  that  a  joint  debtor  not  originally  summoned  to  answer 
the  complaint  may  be  summoned  to  show  cause  why  he  should 
not  be  bound  by  the  judgment  in  the  same  manner  as  if  he  had 
been  originally  summoned ;  and  has  provided  (§  379)  that  he 
may  make  the  same  defences  which  he  might  have  originally 


NEW  SERIES ;  YOL.  I.  153 

Foster  v.  Wood. 

made  to  the  action,  except  the  statute  of  limitations  ;  in  thi& 
spect  affording  a  mode  for  establishing  his  individual  liability  up- 
on the  judgment,  and  giving  to  the  judgment  in  so  far  as  he  is  pre- 
cluded from  the  defence  of  the  statute  of  limitations,  more  effect 
than  it  had  under  the  Revised  Statutes  (Bruen  v.  Bokee,  4 
Den.,  56). 

In  the  same  chapter  and  in  the  section  immediately  following, 
provision  is  made  for  summoning  heirs,  devisees,  legatees  and  per- 
sonal representatives,  in  a  certain  time  after  the  death  of  a  judg- 
ment debtor,  to  show  cause  why  the  judgment  should  notbe  enforced 
agaitjst  the  estate  of  the  judgment  debtor  in  their  hands.  This 
provision  was  manifestly  intended  as  a  substitute  for  the  writ  of 
scire  facias  to  obtain  execution  upon  final  judgment  after  the  death 
of  the  judgment  debtor  (Alden-y.  Clark,  11  How.  Pr.}  213V;  and  it 
appears  from  the  notes  of  the  codifiers,  that  the  reason  why  it 
was  incorporated  in  this  chapter  was  because  they  had  changed 
the  form  of  proceeding  in  such  a  case,  from  scire  facias,  which 
was  in  the  nature  of  an  action,  and  made  it  comport  with  the 
proceeding  against  joint  debtors,  which  is  by  a  summons  to 
show  cause,  that  there  might  be  a  more  easy  and  expeditious 
mode  of  procedure  in  such  cases,  than  by  scire  facias  (First 
Report  of  CxUfitrs,  1848,  pp.  236,  237).  There  is  nothing  to 
indicate  that  it  was  the  intention  of  the  Legislature  that  a  pro- 
ceeding of  this  nature  might  be  resorted  to  against  the  personal 
representatives  of  a  deceased  joint  debtor,  against  whom  a  judg- 
ment had  been  entered  without  the  service  of  process  upon 
him,  but,  on  the  contrary,  it  is  evident  that  what  is  meant  by 
the  term  "judgment  debtor"  in  this  section  is  one  against  whom 
the  judgment  is  conclusive  and  final.  Upon  scire  fucias  the 
defendant  could  not  plead  any  matter  which  he  might  have 
pleaded  to  the  original  action  (McFarland  v.  Irwin,  8  Johns.,  77 ; 
Cook  v.  Jones,  Cowp.,  727).  And  in  this  proceeding  the  per- 
sonal representatives  of  the  judgment  debtor  when  summoned,  are 
limited  to  a  denial  of  the  judgment,  or  the  setting  up  of  a  de- 
fence which  may  have  arisen  subsequently  (Code,  §  379).  The 
right  of  the  party  summoned  to  make  any  defence  which  he 
might  have  made  to  the  action,  is  allowed  only  in  proceedings 
under  the  375th  section ;  and  that  section  provides  only  for  the 
summoning  of  a  joint  debtor  to  show  cause  why  he  should  not  be 
bound  by  the  judgment.  The  one  is  a  proceeding  by  means  of 
which  a  joint  debtor  may  be  made  a  judgment  debtor,  the 


154  ABBOTTS'  PKACTICE  KEPOETS. 

Foster  v.  Wood. 

other  a  proceeding  by  which  a  judgment  debtor's  estate,  after 
his  decease,  may  be  subjected-  to  the  payment  of  the  judg- 
ment against  him ;  distinct  and  different  proceedings,  and 
which  are  not  to  be  confounded  with  each  other. 

That  such  was  the  intention  of  the  Legislature  is  probable  for 
another  reason.  There  was  no  merger  in  the  judgment,  of  the 
the  original  indebtedness,  as  against  Messer.  (Oakley  v.  Aspin- 
wall,  supra).  He  was  a  joint  debtor  and  nothing  more,  and  the 
rule  is  well  settled  that  if  one  of  the  parties  to  a  joint  contract 
dies,  his  personal  representatives  are,  in  law,  discharged  from 
liability,  and  the  survivor  alone  can  be  sued  (Grant  v.  Shuster, 
1  Wend.,  148).  Nor  is  there  any  remedy  in  equity,  unless  the 
survivor  should  be  insolvent,  which  it  is  incumbent  upon  the 
judgment  creditor  to  allege  and  prove  (Lawrence  v.  The  Trustees 
of  the  Leake  &  Watts  Orphan  House,  2  Den.,  587). 

Now  in  the  proceedings  provided  for  in  the  chapter  under 
consideration,  the  judgment  creditor  merely  serves  upon  the 
debtor  a  summons  to  show  cause,  and  the  debtor  must  answer 
within  twenty  days,  setting  up.  his  defence,  if  he  has  any.  That 
such  a  proceeding  was  not  intended  to  apply  to  the  personal  rep- 
resentatives of  a  deceased  joint  debtor  is  obvious,  as  the  very  pro- 
ceeding itself  shows  that  they  are,  in  law,  discharged  from  all 
liability ;  and  if  they  are  chargeable  in  equity,  then  the  burden 
is  upon  the  judgment  creditor  to  establish  it  by  bringing  an 
action.  The  proper  remedy  of  the  plaintiff  was  to  present  his 
claim  to  the  personal  representatives,  and  if  they  would  not 
refer  it,  but  disputed  it,  to  bring  his  action  (2  R.  S.}  88,  89,  §§  35, 
36,  37,  38). 

The  report  of  the  referee  should  be  confirmed. 

Judgment  accordingly. 


NEW  SERIES  ;  YOL.  I.  155 


Brett  v.  Browne. 


BRETT  against  BROWNE. 
Supreme  Court,  First  District ;  At  Chambers,  September,  1865. 

SUPPLEMENTARY  PROCEEDINGS. — CONSTRUCTION  OF  STATUTE. 

The  affidavit  to  procure  the  examination  of  a  third  person  in  proceedings 
supplementary  to  judgment,  under  section  294  of  the  Code  of  Procedure, 
need  not  state  that  the  property  of  the  judgment  debtor  in  his  hands  ex- 
ceeds ten  dollars  •  the  limitation  of  ten  dollars  applies  only  where  the 
affidavit  states  that  such  person  is  indebted  to  the  judgment  debtor. 

Motion  to  vacate  an  order  for  the  examination  of  a  third  per- 
6on,  in  supplementary  proceedings. 

The  affidavit  on  which  an  order  was  made  in  this  action  for  the 
examination  of  Abraham  Morrell,  as  a  third  person  having  prop- 
erty of  the  judgment  debtors,  stated  that  he  "  has  property  of  the 
judgment  debtors,"  but  failed  to  add  "  exceeding  ten  dollars." 
For  this  latter  omission,  the  counsel  for  Morrell  moved  to  dis- 
miss the  proceeding,  citing  Lee  v.  Heubeger  (1  Code  JR.,  38) ; 
Seeley  v.  Garrison  (10  Alb.  Pr.,  460). 

W.  P.  Richardson,  for  plaintiff. — Neither  of  these  cases  are 
applicable  to  this  point.  It  is  manifestly  sufficient  if  either  fact 
exist  and  appear  on  the  face  of  the  affidavit.  The  two  proposi- 
tions are  stated  in  the  statute  disjunctively,  viz:  " Has  property," 
or  "  Is  indebted ;"  the  limitation  of  ten  dollars  being  connected 
with  the  latter  only. 

INGRAHAM,  P.  J. — The  affidavit  in  this  case  on  which  proceed- 
ings were  commenced  to  examine  a  person  having  property  in 
his  possession  belonging  to  the  debtor,  merely  stated  that  the 
witness  had  property  of  the  judgment  debtor  in  his  possession. 
A  motion  is  now  made  to  dismiss  the  proceeding,  on  the  ground 
that  the  affidavit  did  not  state  that  the  property  was  worth  ten 
dollars. 

The  294th  section  of  the  Code  says  that  the  proceeding  may 


156  ABBOTTS'  PRACTICE  REPORTS. 

Brett  v.  Browne. 

be  taken  "  on  an  affidavit  that  any  person  has  property  of  the 
judgment  debtor,  or  is  indebted  to  him  in  an  amount  exceed- 
ing ten  dollars." 

The  grammatical  reading  of  this  sentence  undoubtedly  is  to 
separate  the  two  branches  of  the  sentence,  so  as  to  make  it  read, 
1st,  where  the  person  has  property  of  the  judgment  debtor ;  and 
2d,  where  the  person  is  indebted  in  an  amount  exceeding  ten 
dollars ;  and  such  appears  to  me,,  to  be  the  proper  construction 
of  the  section.  I  have  not  been  able  to  find  any  decision  on 
this  question,  and  I  have  acted  on  the  supposition  that  the  limi- 
tation applied  to  both  portions  of  the  sentence ;  but  my  attention 
has  not  before  been  called  to  this  particular  objection.  In  sec- 
tion 297  no  limit  is  placed  on  the  order  directing  the  applica- 
tion of  the  property  to  the  satisfaction  of  the  judgment.  There 
may  be  reason  for  not  requiring  small  debts  under  ten  dollars 
to  be  made  liable  to  such  a  proceeding ;  while  property  of  any 
value,  in  the  possession  of  a  third  person,  may  be  thus  made 
liable.  The  property  could  be  levied  on  under  an  execution, 
while  the  debt  could  not  be,  and  the  expense  of  collecting  such 
small  debts  would  be  almost  as  much  as  the  debt  itself. 

It  is  difficult  to  say  what  the  intent  of  the  Legislature  was  in 
this  matter,  without  any  thing  in  the  context  to  throw  any  light 
upon  it,  and  I  think  it  better,  therefore,  to  adhere  to  the  ordin- 
ary construction  of  the'  language,  so  as  to  apply  the  limitation 
of  ten  dollars  to  the  indebtedness  only,  and  not  to  the  value  of 
the  property  which  a  third  person  may  have  in  possession.  Un- 
der these  views  the  affidavit  is  sufficient,  and  the  witness  must 
submit  to  examination. 


NEW  SERIES ;  VOL.  I.  157 

Ketchum  v.  Ketchum. 


KETCHUM  againd  KETCHUM. 
Supreme  Court,  First  District ;  Special  Term,  November,  1865. 

ATTACHMENT. — RIGHT    OF    THIRD  PARTY   TO  MOVE   AOAINST. — 
MOTION    AFTER   JUDGMENT. 

It  seems  that  in  an  action  between  partners  for  a  dissolution  of  the  firm,  an 
accounting,  and  the  payment  of  an  alleged  balance,  an  attachment  can- 
not be  issued,  though  the  defendant  be  charged  with  fraudulently  dis- 
posing of  the  property  of  the  firm. 

A  mere  creditor  without  judgment,  though  he  has  commenced  an  action  and 
procured  the  issue  of  an  attachment,  cannot  move  to  set  aside  a  prior  attach- 
ment irregularly  issued  against  the  property  of  the  same  debtor,  and  levied 
before  his  action  was  commenced.  , 

Whether,  after  judgment,  the  regularity  of  the  attachment  can  be  inquired 
into  in  a  collateral  proceeding,  Quert  ? 

Motion  to  vacate  an  attachment. 

All  the  members  of  the  firm  of  Ketchum,  Son  &  Co.,  except 
Edward  B.  Ketchum,  commenced  an  action  against  him,  charg- 
ing him  with  having  fraudulently  disposed  of  the  funds  and 
property  of  the  firm,  and  praying  for  a  dissolution  of  the  firm, 
the  appointment  of  a  receiver,  and  an  accounting  of  the  effects  of 
the  firm  and  of  the  partners  therein,  and  that  the  balance  due  by 
the  defendant  might  be  recovered.  This  action  was  com- 
menced by  attachment  against  the  defendant,  under  which  his 
property  was  seized  by  the  sheriff.  Subsequently  two  actions 
were  commenced  \>y  Isham  and  others  against  the  whole  firm,  and 
attachments  issued  in  both  cases  against  the  property  of  Edward 
B.  Ketchum.  The  plaintiffs  in  the  two  actions  brought  by  Isham 
&  Co.,  now  moved  to  set  aside  the  first  attachment  is- 
sued in  favor  of  Morris  Ketchum  &  Co.,  upon,  the  ground  that 
no  attachment  could  properly  be  issued  in  that  action.  Judg- 
ment was  recovered  in  the  first  action  before  this  motion  was 
made.  It  did  not  appear  that  judgment  had  been  entered  in 
either  of  the  other  actions  when  this  motion  was  made. 


158  ABBOTTS'  PRACTICE  REPORTS. 

Ketchum  v.  Ketchum. 

INGRAHAM,  P.  J. — It  may  well  be  doubted  whether  this 
action  is  one  contemplated  by  the  227th  section  of  the  Code  of 
Procedure.  It  is  not  an  action  for  the  recovery  of  money,  but 
one  for  the  disolution  of  the  firm,  and  the  settlement  of  its 
aifairs,  and  of  the  accounts  of  the  several  partners  with  the 
firm.  What  the  result  of  that  accounting  will  be,  cannot  be 
told,  much  less  sworn  to,  until  after  the  account  is  taken  ;  and 
the  result  of  the  action  ordinarily  would  be  a  dissolution  of  the 
firm,  the  appointment  of  the  receiver,  and,  after  the  accounting, 
an  order  or  judgment  directing  those  defendants  who  were 
indebted  to  the  firm  to  pay  to  the  receiver  the  amount  found 
due  from  them  respectively,  after  crediting  them  with  their 
share  of  the  assets  of  the  concern.  Instead  of  this  there,  ap- 
pears to  have  been  a  judgment  dissolving  the  partnership, 
appointing  receivers,  and  directing  an  account,  and,  on  the 
coming  in  of  the  report  of  the  referee,  a  judgment  that  the 
plaintiffs  recover  to  the  use  of  the  receivers  the  amount  re- 
ported due  from  the  defendant  to  the  firm.  It  is  not  necessary 
for  me  now  to  inquire  into  tke  propriety  of  such  a  judgment, 
except  so  far  as  to  say  that  it  is  not  in  one  of  those  actions  con- 
templated by  the  section  of  the  Code  before  referred  to.  It  is 
not. an  action  brought  for  the  recovery  of  money,  nor  is  it 
possible  for  the  plaintiff  to  state  the  amount  of  the  claim,  as 
required  by  the  229th  section.  Each  partner  has  a  right  to 
the  possession  of  the  partnership  property,  and  until  the  dis- 
solution of  the  firm,  there  can  be.no  indebtedness  from  one 
partner  to  the  firm,  which  could  be  the  foundation  of  an  action. 

But  there  is  a  difficulty  in  the  way  of  the  parties  making 
this  motion  which  is  conclusive  against  it,  viz. :  that  the  plain- 
tiffs in  the  second  and  third  suits  are  not  judgment  creditors, 
and  therefore  are  not  in  a  condition  to  attack  the  prior  attach- 
ments. The  mere  claim  to  be  a  creditor  is  not  sufficient  to 
authorize  them  to  move  to  set  aside  prior  liens.  That  can  only 
be  done,  if  at  all,  by  judgment  creditors.  Their  right  as  cred- 
itors must  be  established  by  a  judgment  before  they  can  make 
such  motions.  The  same  rule  which  applies  to  motions  to  set 
aside  judgments  and  executions  applies  to  similar  motions  to 
set  aside  attachments,  viz. :  that  the  moving  party,  if  other 
than  the  defendant,  must  have  a  lien  on  the  property  by  a 
judgment,  or  have  his  right  to  be  considered  a  creditor  estab- 
lished in  that  mode,  before  he  can  make  the  motion.  It  must 


NEW  SERIES ;  VOL.  I.  159 

Ford  v.  Townsend. 

be  apparent  that  lie  is  injured  by  the  attachments,  before  he 
can  move  to  vacate  them.  Whether  even  after  judgment,  the 
regularity  of  the  attachment  can  be  inquired  into  in  a  col- 
lateral proceeding  is  not  by  any  means  clear.  A  contrary 
opinion  was  expressed  in  Re  Griswold,  13  Barb.,  412.  It  is  not 
necessary,  now  however,  to  decide  that  point.  The  present 
motion  must  be  disposed  of  on  the  ground  that  a  mere .  cred- 
itor before  judgment  cannot  move  to  set  aside  an  attachment 
issued  in  another  action,  and  levied  before  his  action  was  com- 
menced. 

The  motion  is  denied  with  ten  dollars  costs 


FORD  against  TQWNSEJSTD. 
New  York  Superior  Court;  General  Term,  May,  1863. 

BOND  FOE  PAYMENT  OF  JUDGMENT. EFFECT  OF  APPEAL. — WAIVER. 

Where  a  bond  with  sureties  was  given  by  one  of  several  defendants,  against 
whom  a  personal  judgment  had  been  recovered,  conditioned  for  the  pay- 
ment of  the  amount  of  the  judgment  whenever  ordered  by  the  final  decision 
of  the  court,  such  bond  being  given  as  a  condition  imposed  by  the  court 
for  refusing  to  appoint  a  receiver  of  specific  property,  upon  which  the 
judgment  against  the  defendant  had  been  declared  to  be  a  lien ; — Held, 
that  it  was  no  defence  to  an  action  on  such  bond,  that  upon  an  appeal  the 
judgment  was  subsequently  modified  by  reversing  it  so  far  as  it  imposed 
any  personal  liability  upon  the  defendant  who  gave  such  bond,  and  affirm- 
ing it  as  to  the  others. 

The  voluntary  act  of  the  obligors  in  giving  such  a  bond  under  an  order 
which  affords  ftie  party  his  election  to  give  it  or  not,  is  a  waiver  of  any 
objection  to  the  authority  of  the  judge  making  the  order,  to  require  such 
a  bond. 

Appeal  from  a  judgment  in  favor  of  the  defendants  Samuel 
P.  Townsend,  Tappen  Townsend  and  Thomas  Wilber,  entered 
upon  an  order  dismissing  the  complaint  upon  the  trial  before 
Mr.  Justice  PIERKEPONT  on  the  4th  of  October,  I860. 


160  ABBOTTS'  PKACTICE  REPORTS. 

Ford  v.  Tovmsend. 

The  action  was  brought  by  Samuel  Ford,  upon  a  penal  bond 
given  by  the  defendants  in  compliance  with  an  order  of  court, 
made  in  a  previous  action  against  the  defendant  Townsend, 
and  two  other  persons,  David  and  Turner,  which  order  directed 
the  appointment  of  a  receiver  unless  the  defendants  in  that  ac- 
tion should  give  such  bond. 

The  object  of  the  prior  action,  which  was  brought  by  the 
plain  tiff  in  this  action,  was  to  recover  the  sum  of  thirty-one 
hundred  dollars,  with  interest,  and  to  have  the  payment  there- 
of adjudged  a  lien  upon  the  property  mentioned  in  the  bond 
upon  which  this  action  is  brought.  The  plaintiff  recovered 
a  judgment  for  that  relief  and  directing  the  appointment  of  a 
receiver  if  execution  should  be  returned  unsatisfied.  On  a 
subsequent  application  by  the  plaintiff  for  the  immediate  ap- 
pointment of  a  receiver  without  waiting  for  execution,  the 
court  ordered  that  the  defendants  in  that  action  should  give  a 
bond  with  two  sureties  for  the  payment  of  tho  sum  recovered, 
and  in  case  they  should  do  so  the  lien  should  cease ;  but  if 
they  did  not,  a  receiver  should  be  appointed.  The  bond  on 
which  this  action  was  brought  was  accordingly  given  by  the 
present  defendants;  but  on  appeal  the  judgment  in  the  former 
action  was  subsequently  modified  by  reversing  it  so  far  as  it 
adjudged  the  defendant  Townsend  personally  liable;  but  af- 
firming it  as  to  the  other  defendants,  and  as  to  the  appoint- 
ment of  the  receiver. 

The  present  action  being  brought  upon  this  bond,  the  answer 
of  two  of  the  defendants,  Samuel  P.  and  Tappen  Townsend, 
the  only  ones  served  with  process  in  this  action,  put  in  issue 
the  judgment  alleged  in  the  complaint  to  have  been  recovered 
March  15,  1856,  and  the  application  and  order  therein  stated, 
and  the  legality  of  the  same.  It  admitted  that  they,  conjointly 
with  Wilbur,  executed  a  bond,  but  put  in  issue  the  one  stated 
in  the  complaint.  It  denied  that  upon  the  execution  of  the 
bond  that  was  executed,  Samuel  P.  Townsend  took  possession 
of  the  property,  but  alleged  that  the  plaintiff  eloigned  a  part 
of  the  same.  They  denied  by  their  answer  that  this  court  ever 
rendered  any  such  final  decision  as  alleged  in  the  complaint, 
or  by  any  decision  ordered  the  defendant  Samuel  P.  Townsend 
to  pay  anything  whatever  to  the  plaintiff,  or  by  any  decision 
ordered  either  of  the  obligors  to  said  bond  to  pay  him  anything 


NEW  SERIES ;  VOL.  I.  161 


Ford  v.  Townsend. 


whatever,  or  that  it  has  by  any  final  decision  ordered  the 
defendants  in  said  alleged  action  to  pay  him  anything. 

They  insisted  that  this  court,  by  its  final  decision,  rendered 
a*bout  October  IT,  1857,  in  said  action,  upon  an  appeal  duly 
taken,  adjudged  and  decided  that  said  judgment  was  erroneous 
.  and  void,  among  other  things,  in  so  far  as  it  held  that  Samuel 
P.  Townsend  was  bound  to  pay,  or  that  the  plaintiff  was  en- 
titled to  recover  against  him  any  sum  whatever,  and  that  said 
judgment  was  in  these  respects  reversed. 

They  denied  notice  of  the  alleged  final  decision,  and  demand 
of  payment ;  and  alleged  that  the  judgment  first  referred  to  in 
the  complaint  was  not  lawful;  and  denied  the  right  of  the 
judge  to  order  the  giving  the  bond  in  suit,  and  charged 
that  the  same  was  given  under  duress. 

When  the  action  was  called  on  for  trial  a  motion  was  made 
to  dismiss  the  complaint,  which  being  denied,  defendants  ex- 
ceptecl. 

This  motion  was  renewed  after  the  plain  tiff  had  given  his 
evidence  and  rested ;  and  then  was  granted.  To  which  excep- 
tion was  taken  by  the  plaintiff's  counsel.  , 

W.  W.  Northrop,  fbr  plaintiff  appellant. — I.  The  justice 
erred  in  non-suiting  the  plaintiff. 

(#.)  The  action  was  properly  brought  in  the  name  of  Samuel 
Ford  as  plaintiff,  for  the  bond  was  given  to  him  (Stillwell  v. 
Hurlbert,  18  N.  Y.  Rep.,  374 ;  Slack  v.  Heath.  4=  E.  D.  Smith's 
Rep.,  95,  101-4).  (b.)  The  defendants  have  waived  the  right  to 
question  the  plaintiff's  right  to  sue,  by  not  setting  up  in  their 
answer  that  he  is  not  the  real  party  in  interest  (§  148  of  the  Code 
of  Procedure).  And  the  defendants  are  estopped  from  deny- 
ing the  matters  recited  in  the  bond  executed  by  them  (1  Green- 
leaf  on  Evidence,  §  26  ;  Sinclair  v.  Jackson,  8  Cow.,  544,  586  ; 
Jackson  v.  Harrington,  9  Id.,  86,  128  ;  Jackson  v.  Brooks,  8 
Wend.,  426,  434). 

II.  The  defendant's  covenant  to  pay  or  cause  to  be  paid  to 
the  plaintiff  the  sum  awarded  to  be  due  him  by  said  judgment, 
and  all  costs  and  charges  ordered  to  be  paid  to  him  thereupon, 
whenever  ordered  by  this  court  by  its  final  decision,  is  inde- 
pendent of  and  inconsistent  with  the  liquidation  of  the  plain- 
tiff's claim  from  the  proceeds  of  said  property. 

III.  The  defendants  are  estopped  from  raising  the  objection 

N.  S— VOL.  I.— 11. 


162  ABBOTTS'  PRACTICE  REPORTS. 

Ford  v.  Townsend. 

that  a  receiver  lias  not  been  appointed  to  take  possession  of 
said  property,  and  to  sell  the  same,  and  pay  over  the  proceeds 
to  the  plaintiff  in  discharge  of  his  claim. 

S.  Sanxay,  for  defendants  respondents. — I.  The  complaint 
contained.no  cause  of  action,  and  should  have  been  dismissed 
vfhen  Jirnt  asked  for;  and  the  order  dismissing  it,  though  after- 
wards made,  should  be  affirmed. 

II.  It  was  properly  dismissed,  when  finally  moved  for,  after 
the   court  had  given  the  plaintiff  a  full  opportunity  to  make  out 
a  case. 

III.  The  action,  if  one  existed,  could  only  have  been  brought 
upon  the  penalty  of  the  bond. 

IV.  The  bond  was  joint,  and  not  several  (1  Shepherd's  Touch- 
stone, 375  ;  Ehle  v.  Purdy,  6  Wend.,  629). 

By  suing  the  defendants  jointly,  plaintiff  has  elected  to  treat 
the  bond  as  a  joint  one  ;  and  he  could  proceed,  had  he  made  a 
different  election,  only  against  each  severally,  or  against  all  to- 
gether (Per  BULEER,  J.,  in  Streatfield  v.  Halliday,  '3  T.  R.,  782 ; 
gee,  also,  Cabell  v.  Yanghan,  1  Wins}  Saunders,  291,  f.  n. ;  also, 
Bangor*Bank  v.  Treat,  6  Greenl.,  207). 

V.  In  an  action  like  this,  the  plaintiff  must  recover  against 
all,  or  none.      He  could  not  possibly  do  so  here,  for  Wilbur  had 
not  been  served  with  process,  nor  appeared  (See  Downey  v. 
Farmers'  and  Mechanics'  Bank,  13  S.  <&  It.,  288).      And,  not 
being  served  with  process  nor  appearing,  he  is  not  a  party  (Rob- 
inson v.  Frost,  14  JSarb.,  537). 

VI.  The  condition  of  the  bond  is  not  broken.      Sureties  are 
the  favorites  of  the  law  (Moore  v.  Paine,  12  Wend.,  126),   and 
fheir  engagement  cannot  be  extended  beyond  the  very  terms  of 
their  contract  (Whitcher '  v.  Hall,  5  B.  &  C.,  269;  Miller  v. 
Stewart,  4  Wash.  C.  C.  E.,  26 ;  affirmed  on  appeal,  9  Wheat., 
680;  Walsh  v.  Bailie,  10  Johns.,  180;  Wright  v.  Johnson,   8 
Wend.,  516 ;  Evans  v.  Whyle,  5  Bing.,  484 ;   S.  C.,  1  Moo.  <& 
Mai.,  468;  cited  by  Pitman  on  Principal  and  Surety,  34; 
Campbell  /'.  French,  6   T.  E.,  200 ;  Arlington  v.  Merrick,  2 
Saund,,  403  ;  4  Taunt.,  593). 

VII.  The  complaint  should  have  stated  specific  breaches  for 
which  the  action  is  brought  (2  7?.  S.,  378 ;  7  Wend.,  345 ;  4 
Wend.,  570;  Juliand  v.  Burgott,  11  Johns.,  6;  Drummond  v. 
Husson,  4  JZcrn.,  60 ;  Nelson  v.  Bostwick,  5  Hill,  37). 


NEW  SEKIES;  VOL.  I.  163 

Ford  v.  Townsend. 

VIII.  The  promise  of  performance  in  the  bond  is  joint,   and 
not  several ;  and  there  is  but  one  thing  to  be  done,   and   there 
•can  be  no  severance  in  the  action  (Ckitt.  PI.,  6  Ed.  47 ;  Plait 
on  Cov.i  117;  Marshall  v.  Smith,  3  Shepley,  17). 

IX.  Bonds  must  be  taken  always  most  strongly  in  favor  of 
the  obligor.      The  condition  is  considered  the  language  of  the 
obligee  (Per  BALDWIN,  C.  J.,  and  FITZ  HERBERT,  J.,  in  Bold  v. 
Molineux,  1  Dyer,  14  b.,  17  a. ;  see,  also,  1  Shepherd's  Touch- 
stone, 375,  376 ;  Powell  on  Contracts,  396,  397 ;  Laughter's  Case, 
5  Rep.,  22). 

X.  The  liability  of  a  surety  cannot  be  more  than  that  of  the 
principal,  upon  the  particular  transaction  or  contract,  in  regard 
to  which  the  relation  of  surety  was  created.      And  Samuel  P. 
Tcwnsend,  the  principal,  is  freed  from  liability  by  the  final 
decision  of  the  general  term;  and  the  absurd  idea  is  now  ad- 
vanced of  making  him  liable,  notwithstanding. 

XI.  A  liability  can  only  be  incurred  in  the  mode  provided 
(Drummond  v.  Husson,  4  Kern.,  60 ;  Bulkley  v.  Lord,  2  Starkie, 
406),  and  it  cannot  be  argued  that  any  such  liability  has  arisen 
here. 

XII.  The  judge  had  no  legal  right  to  require  any  such  bond 
to  be  given,  and  it  is  void  (U.  S.  v.  Ilipkin,  2  Hall's  Amer.  Law. 
Jour.,  80) ;  and  this  question  can  be  raised  collaterally  (Broad- 
head  v.  McConnell,  3  Bar~b.,  176). 

XIII.  A  bond  may  be  discharged  by  parol   (Dearborn   v. 
Cross,  7  Cow.,  48).      And  that  this  was  discharged,  or  never 
meant  to  be  availed  of,  is  clear,  from  the  fact  that  the  order  di- 
recting it  to  be  given  was  never  made  part  of  the  judgment 
roll. 

XIV.  The  complaint  does  not  aver  the  bond  to  be  sealed. 
This  was  necessary  (Van  Santvoord  v.    Sandford,   12   Johns., 
197 ;  Macomb  v.  •  Thompson,  14  Id.,  207 ;   Stanton  v.  Camp,  4 
&jib.,  274). 

XV.  Where  a  number  of  defendants  are  named  as  joint  de- 
fendants, the  trial  record  must  show  all  the  parties  to  be  before 
the  court,  and  until  then,  the  action  is  in  no  condition   to   be 
tried. 

XVI.  A  condition  precedent  to  any,  possible  liability  of  de- 
fendants, even  had  the  general  term,   by  its  final  decision,  de- 
creed a  liability  of  the  defendants,  was,  that  S.  P.  Townsend 
should  be  permitted  to  take  certain  personal  property.      Plain- 


164 ABBOTTS'  PRACTICE  EEPOETS. 

Ford  t.  Townsend. 

tiff  conld  not  recover,  unless  he  had  averred  and  proved  per- 
formance of  this  condition  fully  (Oakley  v.  Morton,  1  Kern.,  25). 
This  point  was  in  issue  by  the  answer. 

XVII.  The  condition  is  that  the  obligors  will  pay,  whenever 
ordered  by  the  final  decision  of  this  court.      This  means  when- 
ever they  are  ordered ;  but  if  it  should  be  construed  to  mean, 
whenever  either  is  ordered,  there  should  have  been  an  allega- 
tion  and  proof  as  to  which  obligor  was  ordered,   and  when, 
and  how.     S.  P.  Townsend  only  was,  of  these  obligors,  before  the 
general  term,  and,  of  course,  was  the  only  one  who  could  pos- 
sibly have  been  ordered  to  pay  ;   and  he,  it  seems,  was  dis- 
charged from  all  liability  to  pay.     It  is  fair  to  construe  the  bond 
thus,  that  the  intent  was  that  the  bond  should  remain  operative 
if  the  general   term  should  hold  S.  P.  Townsend  to  a  personal 
liability;  but  if  it  should  discharge  him,  the  bond  should,   of 
course,  be  discharged  also.     It  cannot  honestly  be  assumed  that 
the  obligors  of  the  bond  meant  to  bind  themselves,  if  the  gene- 
ral term  should  hold  any  of  the  other  parties  liable ;  for  if  so, 
the  bond  would  have  said  so ;  but  by  no  latitude  of  construction 
can  any  such  meaning  be  given  to  it  (See,  also,  Wells  v.  Bald- 
win, 18  Johns  ,  45). 

XVIII.  The  action  being  treated  as  joint,  and  "Wilbur  not  be- 
ing served  nor  appearing,  the  plaintiff  had  no  action  when  the 
cause  was  tried  (4  Hill,  563  ;  Id.,  35  ;  and  see  Burnham  v.  De 
Bevoise,  8  How.  Pr.,  159). 

XIX.  The  judgment  at  general  term  is  now  the  only  judgment 
in  the  cause,  and  that  provides  several  conditions  and  contin- 
gencies before  the  property  in  the  Mercantile  Hotel  is  liable  to 
pay  the  plaintiff's  claim  ;  and  that  judgment  discharged  Towns- 
end  altogether,  and  by  modifying  and  changing  the  judgment 
which  was  originally  given,  must  be  construed   as  discharging 
the  order  of  Judge  HOFFMAN,  of  December  17th,  and  every- 
thing else  connected  with  it,  which  at  all  affected  or  modified 

O  » 

it,  including,  of  course,  the  bond  given  under  that  order. 

XX.  It  was  clearly  proved  that  the  plaintiff  in  this  action  had 
no  interest  in  it,  and  was  not  the  real  party  in  interest,  and  had 
no  right  to  sue  under  sections  111-113,  of  the  Code. 

BY  THE  COURT.* — MONCEIEF,  J. — The  exceptions  to  the  ad- 
mission of  testimony,  etc.,  taken  by  the  defendants  upon  the 

*  Present,  BOSWOBTH,  Ch.  J.(  and  MONCRIEP  and  WHITE,  JJ. 


NEW  SERIES;  VOL.   I.  165 

Ford  v.  Townscnd. 

trial,  cannot  be  considered  upon  this  appeal.  "  The  rule  is  to 
examine  the  decisions  made  by  the  (circuit)  judge  against  the 
party  who  has  lost  the  verdict,  and  to  grant  or  refuse  a  new 
trial  according  as  we  find  them  erroneous  or  otherwise  (Elsey  v. 
Metcalf,  1  Den.,  323 ;  Rodgers  v.  Murray,  3  J3osiv.,  357). 

It  remains,  therefore,  only  to  be  considered  whether  the  facts 
adduced  upon  the  trial,  assuming  them  to  be  undisputed,  would 
entitle  the  plaintiff  to  a  judgment  in  his  favor  ?  Did  the  proofs 
upon  which  the  plaintiff  rested  his  case,  constitute  a  cause  of  ac- 
tion against  the  defendants  named  in  the  action  ? 

It  appears  that  in  the  month  of  March,  1856,  one  of  the  jus- 
tices of  this  court,  in  an  action  wherein  the  present  plaintiff 
was  the  plaintiff,  and  Henry  J.  David,  Don  M.  M.  Turner,  Sam- 
uel P.  Townsend  and  John  Johnson  were  the  defendants,  made 
a  certain  judgment  or  decree,  wherein  and  whereby  it  was  ad- 
judged "  by  the  court  that  the  plaintiff  do  recover  the  sum  of 
three  thousand  five  hundred  and  eighty -six  dollars,  as  well  from 
the  defendant  Henry  J.  David,  as  from  the  defendant  Don  M. 
M.  Turner,  and  from  the.  defendant  Samuel  P.  Townsend,  re- 
spectively, such  sum  being  the  amount  of  three  thousand  one 
hundred  dollars  with  interest,  after  deducting  the  amount  of 
nineteen  dollars  and  forty-three  cents,  etc.,  *  *  *  and  that 
the  plaintiff  have  execution  against  the  defendants  David, 
Turner  and  Townsend  severally,  for  such  amount,  being  three 
thousand  five  hundred  and  fifty-six  dollars  and  fifty-seven  cents. 
"And  it  is  further  declared  and  adjudged  that  the  plaintiff 
is  entitled  to,  and  that  he  has  an  equitable  lien  upon  the  fix- 
tures in  such  (Mercantile)  Hotel,  and  what  remains  of  the  furni- 
ture comprised  in  the  schedule  to  the  mortgage,  given  by  the 
plaintiff  to  David  S.  Jones. 

"  And  it  is  further  declared  and  adjudged  that  a  Receiver  be 
appointed  to  take  charge  of  such  furniture  and  fixtures  and  sell 
and  dispose  of  the  same  for  the  payment  of  the  said  sum  of  three 
thousand  five  hundred  and  sixty-six  dollars  and  fifty-seven  cents, 
and  the  interest  thereon,  until  the  same  be  paid."  *  *  *  * 
It  also  appears  that  on  the  17th  day  of  December,  1856,  the 
said  justice  of  this  court,  in  the  game  action,  "  Ordered  that  the 
defendants  give  security  within  twenty  four  hours,  by  a  bond 
with  two  sureties  in  the  penalty  of  five  thousand  dollars,  condi- 
tional to  pay  to  the  plaintiff  the  sum  of  thirty-one  hundred  dol- 


166  ABBOTTS'  PKACTICE  BEPOETS. 

Ford  v.  Townsend. 

lars,  with  interest  and  costs,  or  that  a  receiver  be  appointed 
forthwith  of  the  hotel  leases,  furniture  and  fixtures  mentioned  in 
the  plaintiff's  complaint,  and  in  case  such  security  be  filed  by 
the  defendants,  the  owner  or  owners  of  the  said  leases,  furniture 
and  fixtures,  may  do  what  they  choose  with  the  same,  and  that 
the  plaintiff's  lien  thereon  shall  cease"  *  *  *  * 

Thereupon  and  on  the  18th  day  of  December,  1856,.  a  bond 
wa,s  executed  by  the  defendant  in  this  action  in  the  words 
and  figures  following,  to  wit : 

"  Know  all  men  by  these  presents,  that  we,  Samuel  P.  Town- 
send,  of  the  City  of  New  York,  and  Tappen  Townsend,  of  the 
City  of  Brooklyn,  and  Thomas  Wilbur,  of  the  City  of  Brooklyn, 
are  held  and  firmly  bound  unto  Samuel  Ford,  of  the  City  of 
New  York,  in  the  penal  sum  of  five  thousand  dollars,  lawful 
money  of  the  United  States.  For  which  payment  well  and 
truly  be  made,  we  bind  ourselves  and  our  and  each  of  our  heirs, 
executors  and  administrators,  jointly  and  severally  by  these 
presents.  Sealed  with  our  seals  this  18th  day  of  December,  A. 
I).,  1856.  Whereas,  by  a  certain  order  or  judgment  made  at  a 
special  term  of  the  Superior  Court,  held  at  the  City  Hall,  in 
the  City  of  New  York,  before  the  Hon.  MURRAY  HOFFMAN,  one 
of  the  justices  of  said  court,  bearing  date  the  first  Monday  of 
March,  A.  D.,  1856,  in  a  certain  action  in  which  Samuel  Ford 
was  and  is  plaintiff,  and  Henry  I.  David,  Don  M.  M.  Turner, 
Samuel  P.  Townsend  and  John  Johnson  are  defendants, 
wherein  and  whereby  it  was  adjudged  that  said  defendants 
David,  Turner  and  Townsend  were  bound  to  pay  and  said 
plaintiff  was  entitled  to  recover  against  them  respectively  the 
sum  of  three  thousand  five  hundred  and  sixty-six  dollars 
and  fifty-seven  cents,  together  with  certain  costs,  amounting 
in  the  whole  to  a  sum  not  exceeding  four  thousand  three 
hundred  dollars,  subject  to  a  certain  liability  of  the  said  Ford 
to  pay  for  certain  rooms  and  the  use  thereof,  in  certain  prem- 
ises called  the  Mercantile  Hotel,  situate  at  Numbers  2,  4,  6 
and  8  Warren  street,  in  the  City  of  New  York,  and  also  de- 
creeing that  said  Ford  had  an  equitable  lien  upon  certain  fix- 
tures and  furniture  in  said  Hotel  for  the  payment  of  said  sum,  as 
will  more  fully  appear  by  the  said  judgment  order,  or  judg- 
ment ;  and  whereas,  the  said  Ford  did,  on  the  16th  day  of  De- 
cember, 1856,  apply  to  the  said  justice,  the  Hon.  MURE  AY  HOFF- 


NEW  SERIES ;  YOL.  I.  167 

Ford  v.  Townsend. 

was  discharged  ;  the  order  of  course  never  was  appealed  from  ; 
MAN  for  a  modification  of  the  said  judgment  order,  so  that  a 
receiver  might  be  appointed  to  take  charge  of  said  property  in 
said  Mercantile  Hotel,  which  is  charged  with  said  equitable 
lien,  and  said  justice  did  thereupon,  on  the  seventeenth  day  of 
said  December,  order  that  said  Townsend  be  permitted  to 
take  said  property  and  do  with  the  same  as  he  might  see  lit 
upon  his  executing  a  bond  with  two  sureties,  who  should  jus- 
tify in  the  sum  of  five  thousand  dollars  conditioned  to  pay  the 
amount  of  said  recovery,  as  by  said  order  will  more  fully  appear, 
reference  being  thereunto  had  : 

"  Now  the  condition  of  this  obligation  is  such  that  if  the 
above  bounden  obligors,  or  any  or  either  of  them  shall  and 
will  well  and  truly  pay  or  cause  to  be  paid  to  the  said  Samuel 
Ford  the  sum  awarded  to  be  due  him  by  said  judgment,  and 
all  costs  and  charges  ordered  to  be  p;iid  to  him  thereupon, 
whenever  ordered  by  the  said  Superior  Court  by  its  final  de- 
cision, then  their  obligation  to  be  void,  and  the  obligors  to  be 
discharged,  otherwise  tx^be  and  remain  in  full  force  and  vir- 
tue. 

"  Witness  our  hands  and  seals  the  day  and  year  first  above 
written." 

[Signatures,  <#<?.] 

The  order  of  the  17th  of  December,  1856,  having  been  com- 
plied with  by  the  execution,  delivery  and  approval  of  the  fore- 
going bond,  Mr.  Justice  HOFFMAN  discharged  the  lien  of  the 
plaintiff,  and  the  injunction  and  order  for  a  .receiver  was  also 
discharged. 

It  also  appears  that  an  appeal  was  taken  from  the  judgment, 
on  the  1st  Monday  of  March,  1856,  to  the  General  Term,  of 
this  court,  and  thereafter,  and  in  the  month  of  October,  1857, 
the  general  term  did  render  its  final  decision  affirming  the 
hereinbefore  recited  portions  of  the  judgment  so  given  and 
directed  by  the  court  at  the  special  term  held  on  the  1st 
Monday  of  March,  1856,  and  also  directing,  in  view  of  the 
fact  that  the  subsequent  modification  of  the  judgment  (by  the 
order  of  the  16th  of  December,  1856,)  was  not  presented  at  the 
general  term,  that  the  proceedings  for  tne  appointment  of  a 
receiver  be  first  perfected  and  concluded,  and  the  said  pro- 
perty be  sold  by  the  receiver,  &c.  *  *  * 


168  ABBOTTS'  PRACTICE  EXPORTS. 

Ford  v.  Townsend. 

This  action  was  brought  upon  the  aforesaid  bond  averring 
the  facts  hereinbefore  stated,  &c. 

A  demand  was  proven  to  have  been  made  of  the  defendants 
Samuel  P.  Townsend  and  Tappen  Townsend  prior  to  the  com- 
mencement of  this  action  ;  no  demand  was  made  upon  the 
defendant  Wilbur,  nor  was  he  served  with  a  summons,  nor  did 
he  appear  in  this  action. 

A  computation  was  made  and  presented  at  the  trial,  of  the 
amount  due  to  the  plaintiff  from  the  defendant  in  this  action, 
the  principal  sum  is,  &c.  *  *  * 

Upon  the  facts  thus  presented,  in  my  opinion,  it  is  quite  plain 
that  the  plaintiff  was  entitled  to  judgment;  a  perfect  cause 
of  action  is  shown;  a  breach  of  the  condition  of  the  bond  upon 
which  the  action  is  brought  was  established  ;  the  recital  in  the 
bond  shows  that  it  was  given  as  a  substitute  and  in  lieu  of  the 
equitable  lien,  which  w.is-  adjudged  to  exist  against  certain 
furniture,  <foe.,  and  it  was  "  conditioned  to  pay  the  amount  of 
said  recovery,"  being  a  personal  judgment  against  David, 
Turner  and  Samuel  P.  Townsend  for  the  sum  of  three  thousand 
five  hundred  and  sixty-six  dollars,  and  fifty-seven  cents ;  it  ap- 
pears too  that  upon  the  delivery  of  this  bond,  the  equitable  lien, 
the  injunction  and  order  f  >r  receiver  were  discharged;  that  the 
court  by  its  final  decision.,  at  the  general  term,  in  the  month 
of  October,  1857,  did -"order  the  sum  awarded  to  be  due  to 
the  present  plaintiff  by  the  said  judgment  made  at  the  special 
term  aforesaid,  and  all  costs  and  charges  ordered  to  be  paid  to 
him  thereupon  by  sustaining  and  affirming  such  portions  of 
the  judgment  below  as  fixed  the  amount  of  recovery,  and  gave 
to  the  plaintiff  an  equitable  lien  upon  said  furniture,  &c.,  as 
security  for  its  payment. 

The  objection  that  the  order  directing  that  a  bond  be  given 
was  without  authority,  the  officer  making  the  order  having  no 
power  to  make  it,  we  are  of  opinion  is  not  well  taken — the 
plaintiff  had  an  equitable  lien  upon  the  furniture  &c.,  and  an 
order  had  been  made  by  which  a  receiver  was  to  be  appointed  ; 
an  application  appears  to  have  been  made  to  the  court  that  a 
receiver  be  appointed  forthwith,  and  thereupon  the  counsel 
for  the  defendant  S.  P.  Townsend  was  heard,  and  the  motion 
was  granted  unless  he  gave  a  bond  ;  this  he  elected  to  do  and 
gave  the  bond  in  question  and  the  plaintiff's  equitable  lien 


SERIES      VOL.  T.  169 


Taylor  v.  Brookman. 


the  execution  and  delivery  of  the  bond  to  the  plaintiff  was  the 
voluntary  act  of  the  defendant,  and  was  a  waiver  of  defects  if 
any  existed  (Franklin  v.  Pendleton,  3  Sandf.,  572). 

The  judgment  should  be  reversed,  and  a  new  trial  granted, 
with  costs  to  abide  the  event. 


TAYLOR  against  BROOKMAK* 

Supreme  Court,  First  District;  General  Term,  November,  1865. 
INJUNCTION. — CAUSE  OF  ACTION. 

An  injunction  will  not  lie  at  the  suit  of  the  owner  of  a  wharf  or  bulkhead, 
having  a  mere  easement  in  the  nature  of  wharfage  in  respect  to  the  land 
under  water  in  front  thereof,  to  prevent  the  erection  of  a  pier  or  wharf 
by  an  adjoining  owner  under  the  sanction  of  public  authority.* 

*  In  the  case  of  THE  PEOPLE  v.  THE  HARLEM  BRIDGE  Co.  (Supreme  Court, 
First  Dis  rict ;  Special  Term,  June,  1865),  it  was  Held,  that  the  Court 
would  not,  upon  a  motion  for  a  preliminary  injunction,  decide  a  question 
involving  a  forfeiture  of  corporate  rights  ;  nor  usually  grant  a  preliminary 
injunction  if  there  is  to  be  a  trial  involving  such  important  rights,  unless  it 
appears  from  the  papers  before  the  Court  that  serious  injury  will  follow  the 
refusal  of  it. 

INGRAHAM,  P.  J. — The  affidavits  submitted  in  this  case  show  that  the  pre- 
sent bridge  over  Harlem  river  is  not  the  original  bridge  known  as  Coles' 
Bridge,  nor  the  structure  to,  be  erected  in  place  thereof,  but  a  temporary 
bridge,  built  in  the  first  instance  by  the  Bridge  Commissioners,  and  that  the 
same  was  afterwards  widened  and  strengthened  by  the  Railroad  Company, 
at  an  expense  of  about  seven  thousand  dollars.  It  can  hardly  be  claimed 
that  this  is  Coles'  Bridge,  as  charged  in  the  plaintiff's  complaint. 

It  is  also  shown  that  the  .Supervisors  of  Westchester  County  and  the 
Bridge  Commissioners  have  given  permission  to  the  Railroad  Company  to 
lay  their  rails  over  this  temporary  bridge  during  the  pleasure  of  the  Com- 
missioners. There  was  no  authority  for  the  erection  of  this  bridge  in  the 
laws  relating  to  the  subject,  but  it  seems  to  have  been  necessary  for  the 
public  convenience,  and  for  carrying  out  the  purposes  of  those  acts ;  and  so 
far  as  public  rights  are  involved  it  is  difficult  to  say  that  the  people  possess 
any  such  rights  in  opposition  to  the  acts  of  the  Bridge  Commissioners,  unless 


1TO  ABBOTTS'  PRACTICE  REPORTS. 

Taylor  v.  Brookman. 

If  injured  by  such  erection,  his  remedy  is  by  an  action  for  damages  for  the 
obstruction  of  his  his  easement ;  or,  if  he  can  show  title  to  the  land  on 
•which  the  erection  is  made,  by  an  action  to  recover  possession  thereof. 

Appeal  from  an  order  denying  a  motion  for  an  injunction. 

The  plaintiff,  Moses  Taylor,  was  the  owner  of  a  piece  of  land, 
being  a  portion  of  a  tract  formerly  owned  by  him  which  was 
bounded  by  Nineteenth  street  on  the  north,  by  Seventeenth 
.street  on  the  south,  by  Tompkins  street  on  the  east,  and  by 
Avenue  B  on  the  west,  and  the  title  to  which  tract,  by  means 
of  former  conveyances  from  the  owners  of  the  upland  and  by 
grants  of  land  under  water  from  the  Common  Council  of  the 
city,  had  been  vested  in  the  plaintiff.  In  February,  1865,  he 
sold  and  conveyed  to  .the  defendants,  H.  D.  and  J.  U.  Brook- 
man, the  block  lying  between  Nineteenth  and  Eighteenth  streets, 
and  Avenue  B  and  Tompkins  street,  together  with  all  the  water 
rights  growing  out  of  or  in  anywise  appertaining  thereto. 

The  plaintiff  retained  and  still  owns  the  piece  of  land  lying  be- 
tween Eigliieenth  street  on  the  north,  the  centre  line  of  Stuyve- 
sant  street  on  the  south,  and  a  line  one  hundred  and  thirty-eight 
feet  easterly  of  Avenue  B  and  Tompkins  street,  with  the  water 
rights  and  privileges  thereto  appertaining,  and  including  the 
right  of  wharfage  and  cranage  thereon,  at  Tompkins  street, 
which  theretofore  had  been  the  exterior  line  of  the  said  city  on 
the  river. 

The  rights  of  the  several  owners  to  the  land  under  water  be- 
tween Tompkins  street  and  the  land  adjoining  had  been  settled 
and  adjudicated. 

By  the  act  of  1826,  ch.  166,  Tompkins  street  was  declared  to 

it  be  to  insist  on  having  the  same  removed  as  an  unlawful  obstruction  of  the 
river.  This,  I  conclude,  no  one  living  in  Westchester  County  would  ask  for. 

As  the  defendants  have  expended  so  large  a  sum  in  erecting  this  tempo- 
rary bridge,  and  have  the  consent  of  the  Commissioners  to  lay  their  rails 
thereon,  there  can  be  no  ground  on  which  the  Court  could  prohibit  the  use 
of  it,  unless  it  be  on  the  ground  of  a  violation  of  their  charter  in  going  be- 
yond the  limits  allowed  for  the  railroad. 

As  the  decision  of  this  question  involves  a  forfeiture  of  their  corporate 
rights,  it  is  not  proper  to  decide  it  on  a  preliminary  injunction,  and  it  is 
not  usual  to  grant  such  an  injunction  where  there  is  to  be  a  trial  involving 
such  important  results,  unless  it  appears  that  serious  injury  will  follow  the 
refusal  of  it.  The  papers  before  me  show  no  such  necessity,  and  I  am  not 
at  liberty  to  enquire  beyond  them  to  see  if  any  such  cause  exists. 

The  motion  for  an  injunction  during  the  litigation  of  this  action  is  denied. 


NEW  SERIES ;  VOL.  I.  171 


Taylor  v.  Brookman. 


be  the  exterior  line,  and  all  grants  made  or  to  be  made  by  the 
Mayor,  &c.,  thereby,  were  to  be  construed  as  rightfully  made 
to  extend  thereto.     Stuyvesant  street  had  been  laid  out  by  *' 
proprietors  of  the  land  there  as  a  street,  and  tire  same  had  bt 
recognized   as  such  by  the   public   authorities,  but  has   sinct 
ceased  to  be  one  of  the  streets  of  the  city  east  of  the  Second 
avenue,  and  that  part  has  been  closed. 

The  act  of  1857,  ch.  763,  p.  638,  established  a  bulkhead  along 
the  East  river  from  Ninth  street  to  Forty-ninth  street ;  and  pro- 
vided for  the  erection  of  a  sea  wall  on  that  line  from  Seven- 
teenth street  to  Thirty-eighth  street,  with  openings  therein,  and 
the  water  space  was  appropriated  for  piers,  and  bridges  and 
wet  basins.  This  act,  however,  gave  no  right  to  the  city,  in  the 
land  under  water  between  Tompkins  street  and  the  sea  wall,  nor 
any  to  the  proprietors  of  the  land  west  of  Tompldns  street.  The 
lines  of  the  bulkhead  and  piers  were  by  this  act  established  ac- 
•  cording  to  the  report  of  the  Harbor  Commissioners  with  some 
alterations  therein  stated,  and  all  filling  beyond  the  bulkhead 
line  was  prohibited. 

In  December,  1863,  a  resolution  was  passed  by  the  Common 
Council  granting  permission  to  the  defendants  as  owners  of  the 
real  estate  situate  between  Nineteenth  and  Twentieth  streets,  to 
fill  in,  erect  and  build  the  bulkhead  to  the  exterior  bulkhead 
line  as  established  by  the  Harbor  Commissioners,  and  also  to 
erect  and  build  to  the  exterior  sea  wall  so  established  the  pier ' 
at  the  end  of  said  streets,  of  the  usual  dimensions,  under  the 
direction  of  the  Street  Commissioners.  Plans  and  specifications 
were  adopted  and  approved  by  the  Street  Commissioners. 

Under  this  resolution  and  permission,  the  defendants  have 
commenced  building  a  pier  from  the  foot  of  Nineteenth  street, 
following  the  line  of  the  street  to  the  exterior  sea  wall,  as  estab- 
lished by  the  Harbor  Commissioners.  The  location  of  said  pier, 
when  extended  to  the  sea  wall  line,  will  cross  between  the  land 
of  the  plaintiff  and  the  sea  wall,  and  would  cut  off  a  portion  of 
the  end  of  Stuyvesant  street,  if  extended  to  the  sea  wall,  and  in 
this  way  deprive  the  plaintiff  of  his  right  to  wharfage,  &c  ,  on 
his  land  in  front  thereof  at  the  sea  wall,  to  which  he  claims  to 
be  entitled. 

He  brought  this  action  praying  for  an  injunction  restraining 
the  defendants  from  erecting  any  pier  or  wharf  in  the  waters 
of  the  East  river  beyond  a  line  running  easterly  from  the  inter- 


172  ABBOTTS'  PKACTICE  REPORTS. 

Taylor  v.  Brookman. 

section  of  Avenue  C  and  the  centre  of  Eighteenth  street,  paral- 
lel to  the  line  of  Stuyvesant  street,  as  extended  to  the  exterior 
line. 

Tliis  motion  was  denied  at  special  term,  and  the  plaintiff  now 
appealed  therefrom. 

John  N".  Whiting,  for  the  plaintiff. 
Gilbert  Dean,  for  the  defendants. 

By  THE  COURT. — INGRAHAM,  P.  J. — It  is  not  necessary,  in  dispos- 
ing of  this  motion,  to  examine  any  of  the  questions  which  were 
discussed  on  the  appeal,  as  to  the  relative  rights  of  the  parties  to 
the  land  lying  between  Tompkins  street  and  the  upland.   Those 
questions  were  settled  when  the  grants  were  made  by  the   city 
and  accepted  by  the  parties.     All  of  the  land  under  water  west 
of  Tompkins  street  was  owned  by  the  plaintiff,  and  the  sale  by 
him  to  the  defendants,  of  the  land  between  Eighteenth  and 
Nineteenth  streets,  and  Tompkins  street  and  Avenue  B,  with 
the  water  rights  attached  thereto,  changed  the  rights  of  the 
plaintiff  or  his  grantors,  as  they  originally  existed   as  riparian 
owners,  and  gave  the  defendants  the  right  and  title  to  the  land 
under  water,  or  reclaimed  from  the  water,  within  those  bound 
aries,  free  from  any  right  as  riparian  owner  which  the  plaintiff 
or  his  grantors  might  have  before  possessed  in  that  portion  of 
•the  premises  so  conveyed.     Such  conveyances  also  gave  the  de- 
fendants the  right  of  wharfage,  etc.,  appurtenant  to  the  land  so 
conveyed,  along  the  line  of  the  bulkhead,  as  fixed  by  the  Har- 
bor Commissioners.      But  the  right  to  wharfage,  etc.,  which 
accompanied  this  grant,  could  only  be  directly  in  front  and  ad- 
joining the  land  so  conveyed,  and  gave  the  defendants  no  right 
or  title  to  the  wharfage,  etc.,  south  of  a  point  formed  by  the  in- 
tersection of  the  north  line  of  Eighteenth  street  with   the   ex- 
terior line  of  Tompkins  street.      Whatever  right  and  title  the 
plaintiff  had  to  wharfage  and  water  rights  as  attached   to   the 
land  owned  by  him  south  of  that  line,  still  remained  his,  and 
was  unaffected  by  that  grant. 

The  enquiry  in  this  case  need  not  to  extend  beyond  the  ques- 
tion which  arises  as  to  the  right  of  the  plaintiff  as  the  riparian 
owner  at  Tompkins  street,  entitled  to  wharfage  there,  to  extend 
that  right  to  the  sea  wall,  and  to  the  intermediate  space  between 
the  sea  wall  and  Tompkins  street. 


NEW  SERIES ;  VOL.  I.  173 

Taylor  v.  Brookman. 

It  does  not  appear  in  any  of  the  papers  submitted  on  this  ap- 
peal, whether  these  piers  are  to  be  built  on  lines  prescribed  by 
the  Harbor  Commissioners  or  by  the  Common  Council.  If  the 
Harbor  Commissioners  had  laid  out  these  piers  as  extensions  of 
the  streets  to  the  sea  wall,  I  do  not  see  how  any  of  the  owners 
could  successfully  resist  the  execution  of  them.  The  legislature 
had  power  to  direct  such  erection,  or  to  permit  the  Common 
Council  to  provide  for  their  erection.  In  the  absence  of  any 
proof  to  the  contrary,  we  must  conclude  that  they  are  laid  out 
in  accordance  with  the  law. 

As  before  stated,  the  parties  owning  to  Tompkins  street  have 
no  right  to  the  land  under  water  east  of  that  street,  nor  is  their 
right  to  wharfage  affected  by  the  erection  of  piers  outside  of 
that  line,  so  long  as  access  is  afforded  to  the  bulkhead.  This  is 
provided  for  by  the  opening  to  be  made  in  the  sea  wall  when 
erected.  Under  the  decision  made  iti  Marshall  v.  Guion  (11  N". 
Y.  [1  -ffmi.],  461),  the  corporation  would  have  the  power  to 
direct  piers  to  be  sunk  in  front  of  the  streets  in  such  manner  as 
they  in  their  discretion  should  think  proper,  and  the  individual 
proprietors  who  might  build  a  bulkhead  to  be  used  as  a  public 
street,  and  to  be  entitled  to  the  wharfag'e  thereon,  would  not 
acquire  a  right  to  construct  piers  projecting  from  that  bulk- 
head. DEXIO,  J.,  says :  "  It  is  not  the  ownership  of  a  lot,  but  a 
mere  easement.  If  injured  by  the  erection  of  other  piers, 
they  might  be  entitled  to  damages,"  but  not  to  prevent  the  , 
erection  of  piers  beyond 'their  property,  and  which  do  not,  in 
fact,  prevent  the  collection  of  wharfage  upon  their  own  portion 
of  the  bulkhead. 

It  seems  to  me,  however,  that  this  appeal  must  be  disposed 
of  on  other  grounds.  When  the  plaintiff  has  no  right  to  the 
land  under  water  over  which  it  is  proposed  to  build  this  pier, 
he  ought  not,  by  injunction,  to  prevent  the  erection  of  what 
has  been  decided  by  public  authority  to  be  necessary  and  proper 
to  the  public  use.  His  property  is  not  invaded.  He  has  noth- 
ing but  a  mere  easement  which  may  be  affected,  and  it  does 
not  appear  that  even  that  will  be  interfered  with  by  this  pier. 
He  must  show  an  undoubted  right  to  what  he  claims  before  he 
can  ask  a  court  of  equity  to  aid  him  in  maintaining  it. 

There  is  also  another  reason  why  a  public  improvement 
should  not  be  stayed  by  injunction,  as  in  the  present  case.  It 
is  that  the  plaintiff  has  an  ample  remedy  by  action.  If  he  is 


174:  ABBOTTS' PRACTICE  REPORTS.  * 

Wilson  v.  Morgan. 

injured  by  the  erection  of  this  pier,  he  may  recover  a  compen- 
sation in  damages  therefor ;  and  if  he  can  make  out  any  title  to 
the  land  over  which  any  part  of  the  pier  is  built,  he  can,  in  like 
manner,  recover  the  same  by  ejectment  The  erection  of  it 
would  not  injure  him.  He  has  no  authority  to  build  any  pier  over 
this  space ;  and  as  a  different  plan  has  been  adopted  by  the 
Common  Council,  it  is  not  probable  that  such  plan  would  be 
changed  so  as  to  permit  an  erection  of  a  pier  on  a  line  parallel 
with  Stuyvesant  street,  more  especially  as  that  street  has  been 
discontinued  and  closed. 

There  is  nothing  in  the  cases  between  the  owners  of  the  up- 
land, as  set  out  in  the  complaint,  which  can  be  considered  as 
any  adjudication  upon  the  questions  before  discussed.  Those 
cases  related  to  the  rights  of  the  parties  in  the  lands  between 
Tompkins  street  and  the  shore.  The  decisions  there  made  can- 
not be  made  applicable  to  this  case,  in  which  neither  the  plain- 
tiff nor  the  city  have  any  title  to  the  fee,  and  where  the  action 
is  brought  merely  to  protect  a  right  to  wharfage,  and  not  any 
title  to  the  land  itself. 

My  conclusion  is  that  the  plaintiff  is  not  entitled  to  an  in- 
junction as  prayed  for,  but  that  he  must  be  left  to  his  remedy, 
if  he  is  damaged  by  the  erection  of  this  pier,  either  by  an  ac- 
tion for  damages,  or  by  ejectment,  or  such  other  mode  as  he  may 
be  advised. 

The  order  appealed  from  should  be  affirmed  with  ten  dollars 
costs. 


WILSON  against  MORGAN. 
New  York  Superior  Court;  General  Term,F<iirua,ry, 

TENDER. — SPECIFIC   PERFORMANCE. — MEASURE  OF   DAMAGES. — 
CONTRACT  PAYABLE  IN  SPECIE. 

'  Under  the  Act  of  Congress  of  February  25, 1862  (12  U.  S.  Stat.  at  L.,  711), 
making  the  notes  issued  by  the  United  States,  "  lawful  money,  and  a  legal 
tender  in  payment  of  all  debts,  public  and  private,  within  the  United 


NEW  SERIES  ;  VOL.   I.  175 

Wilson  v.  Morgan. 

States  ;" — a  contract  for  the  payment  of  a  sum  in  gold  and  silver  dollars 
is  satisfied  by  payment  in  such  legal  tender  notes.  , 

Thus,  where  a  charter  party  was  made  in  a  foreign  country,  subsequent  to 
the  Act,  with  a  stipulation  that  the  freight  was  to  be  paid,  if  cargo  were  dis- 
charged in  the  United  States,  in  gold  and  silver  dollars,  or  by  approved 
bills  on  London ; — Held,  that  freight  on  discharging  cargo  here  could  be 
paid  in  legal  tender  notes. 

The  claim  for  the  freight  is  a  debt  of  the  consignor,  within  the  meaning  of 
the  Act,  and  the  consignee  may  discharge  it  by  payment  in  such  notes. 

A  contract  to  pay  money  in  gold  and  silver  cannot  be  specifically  enforced, 
nor  can  any  other  damages  be  recovered,  upon  its  breach,  except  interest. 

The  plaintiffs,  John  Wilson  and  others,  owners  of  the  British 
ship  Atalanta,  by  their  agents,  George  Henderson  &  Co.,  in  Cal- 
cutta, chartered  a  ship  to  Gillanders,  Arbuthnot  &  Co.,  of 
Calcutta. 

The  charter  party  was  made  in  Calcutta,  and  is  dated  January 
20,1863.  It  contains  the  following  clause: — "The  freight  to 
be  paid  on  unloading  and  right  delivery  of  the  cargo  as  follows, 
viz :  if  discharged"  in  United  States  of  America,  in  silver  and 
gold  dollars,  or  by  approved  bills  on  London ;  if  at  a  port  in 
United  Kingdom,  as  customary."  Edwin  D.  Morgan  and  others, 
the  defendants  in  this  action,  were  the  consignees  of  the  cargo. 

Upon  the  arrival  of  the  vessel  at  the  port  of  New  York,  in 
June,  1863,  the  defendants  tendered  payment  of  the  freight, 
amounting  to  thirty-two  thousand  six  hundred  and  thirty  dollars, 
in  United  States  legal  tender  notes.  The  tender  was  refused 
and  payment  demanded  in  silver  and  gold  dollars,  as  specified 
in  the  charter  party,  which  was  refused ;  and  the  plaintiffs 
brought  this  action. 

The  action  was  tried  by  a  referee,  who  found  the  tender  of 
the  United  States  legal  tender  notes,  and  that  at  the  time  of 
such  tender,  the  market  value  thereof  was  thirty-three  and  one- 
eighth  per  cent,  less  than  that  of  gold  or  silver  dollars. 

By  an  arrangement  between  the  parties  the  plaintiffs  credited 
the  defendants  with  the  market  value  of  the  amount  tendered, 
leaving  a  balance  of  seven  thousand  six  hundred  and  eighty-four 
dollars  and  fifty- seven  cents  due. 

The  referee  found  the  market  value  of  such  balance  was,  in 
the  currency  of  the  United  States,  ten  thousand  two  hundred 
and  thirty  dollars  and  eight  cents. 

Upon  these  facts  the  referee  decided  that  the  plaintiffs  were 
entitled  to  recover  said  sum  of  ten  thousand  two  hundred 


176  ABBOTTS'  PRACTICE  REPORTS. 

Wilson  v.  Morgan. 

and  thirty  dollars  and  eight  cents,  with  interest,  and  rendered 
judgment  accordingly. 
The  defendants  now  appealed. 

E.  Terry,  for  the  appellants. 

A.  F.  Smith,  for  the  respondents. 

BY  THE  COURT. — MONELL,  J. — The  Act  of  Congress,  passed 
February  25,  1862,  provides  that  the  notes  by  that  act  author- 
ized to  be  issued  shall  be  "  lawful  money,  and  a  legal  tender  in 
payment  of  all  debts,  public  and  private,  within  the  United 
States,  except,"  &c.  (12  United  States  Statutes' at  Large,  p.  711). 
The  validity  of  the  act  is  not  open  for  discussion  in  this  State 
(Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.,  400 ;  Meyer  v. 
Roosevelt,  21.).  In  those  cases  the  tender  of  treasury  notes, 
made  lawful  money  by  the  act  of  Congress,  was  held  to  satisfy 
a  debt  which  had  been  contracted,  before  the  passage  of  the 
act,  to  be  paid  in  the  then  "lawful  money  of  the  United 
States."  The  general  theory  of  these  decisions,  and  of  all  the 
decisions  of  other  courts  upholding  the  power  of  Congress  to 
create  other  lawful  money  than  gold  or  silver  coin,  is,  that  by 
the  omission  in  the  Constitution  of  the  United  States  to  declare 
what  shall  or  shall  not  be  a  legal  tender,  and  the  prohibition  to 
the  States  to  make  anything  besides  gold  and  silver  a  legal 
tender,  the  power,  by  necessary  implication,  is  conferred  on  the 
general  government.  Hence,  at  different  periods,  Congress  has 
designated  what  should  be  legal  tender.  In  1792,  they  estab- 
lished a  mint  for  coining  gold  and  silver,  wThich,  by  the  same 
act,  was  made  lawful  money  for  the  payment  of  all  debts.  In 
1793,  they  made  certain  foreign  coin  a  legal  tender,  and  from 
time  to  time  have  regulated  the  value  of  foreign  and  domestic 
coin.  These  acts  have  never  been  questioned  ;  yet  the  power  to 
pass  them  is  not  expressly  given  to  Congress  by  any  provision 
in  the  Federal  Constitution.  Hence  they  can  be  sustained  only 
upon  an  implication  of  power.  Congress  is  not  confined  to  the 
exercise  of  powers  expressly  granted.  The  Supreme  Court  of 
the  United  States,  in  M'Culloch  v.  The  State  of  Maryland,  4 
Wheat.,  316,  and  Gibbons  v.  Ogden,  9  Id.,  1, 188,  wholly  rejects 
any  such  limitation,  and  the  Court  of  Appeals,  in  the  cases  cited 
(supra),  -follows  these  decisions. 

The  charter  of  the  vessel  in  this  case  was  made  in  January, 


NEW  SERIES ;  VOL.  I.  177 

Wilson  v.  Morgan. 

1863,  nearly  a  year  after  the  passage  of  the  Legal  Tender  act, 
and  the  parties  are  presumed  to  have  made  their  contract  with 
reference  to  the  existing  law  (Dewittv.  Brisbane,  16  N.  J".,  508). 
For  purposes  of  •  construction  and  ascertaining  the  intention  of 
parties,  the  place  of  performance  is  the  place  of  the  contract. 
It  is  therefore  to  be  assumed  that  the  parties  were  cognizant  of 
the  law  of  the  United  States  making  paper  money  a  legal  tender 
in  payment  of  all  debts,  and  were  also  cognizant  of  the  inter- 
pretation of  that  law  by  our  courts. 

It  was  substantially  conceded  on  the  argument  by  the  respon- 
dent's counsel  that  if  a  debt  existed  in  this  case  it  could  be  sat- 
isfied by  an  offer  of  legal  tender  notes.     That,  it  appears  to  me, 
was  conceding  too  much,  as  it  is  entirely  clear  a  debt  did  exist. 
A  charter  party  is  but  a  contract  for  the  entire  or  some  principal 
part  of  a  ship  for  the  conveyance  of  goods  on  a  determined  voy- 
age, or  for  employment  in  other  trade,  and  contains  covenants 
by  each  party.    In  the  charter  before  us  it  was  mutually  agreed 
that  the  freight  should  be  paid  on  unloading  and  delivery  of 
the  cargo.     The  lien  which  the  owners  had  for  their  charter 
freight  was  a  mere  security,  and  it  might  have  been  waived  ; 
but  the  waiver  would  not  have  discharged  the  contract  to  pay 
freight.     The  right  to  collect  freight  by  action  has  frequently 
been  adjudged.     In  Clarkson  v.  Edes,  4  Qow.,  470,  it  was  held 
that  the  owner  might  insist  on  his  lien,  or  by  action  compel  pay- 
ment ;  and  in  Barker  v.  Havens,  17  Johns.,  234,  an  action  to  re- 
cover freight  from  the  consignor  was  sustained  after  the  goods 
had  been  delivered  to  the  consignee  without  payment.    And 
where  freight  is  payable  on  delivery  of  the  goods,  the  consignee 
by  accepting  the  delivery  renders  himself  personally  liable  for 
the  freight  (Cook  v.  Taylor,  13  JEast,  339).     The  obligation  to 
pay  freight  is  a  debt,  whether  the  obligation  arises  from  an  ex- 
press or  an  implied  agreement.    Any  agreement  by  which  one 
party  promises  to  pay  money  to  another  party  is  a  debt.     So 
also  any  agreement  which  expressly  or  impliedly  imposes  an 
obligation  to  pay  money  is  a  debt.    The  freight  due  from  the 
defendants'  consignors,  and  for  which  an  action  could  have  been 
maintained,  Was  a  debt  which  they  could  have  satisfied  by  pay- 
ment.   The  defendants,  as  consignees  of  the  goods,  were  the 
mere  factors  of  the  consignors  (Story  Ag.,  §  33).    Payment  by 
them  would  have  discharged  the  debt  of  their  principal.    The 
argument  of  the  respondent's  counsel  proceeds  upon  the  ground 
N.  S.— VOL.  I.— 12. 


ITS  ABBOTTS'  PEACTICE  REPORTS. 

Wilson  v.  Morgan. 

that  no  debt  existed  as  between  the  owners  and  consignees. 
He  seemed  to  lose  sight  of  the  consignor's  agreement  to  pay 
freight  (which  agreement  created  a  debt),  and  also  of  the  duty, 
as  well  as  right,  of  the  consignees  to  satisfy  such  debt  of  their 
principal  by  payment.  And  the  question  is  not  changed  by  the 
position  of  the  parties  on  the  record,  especially  under  the  stipu- 
lation in  the  case. 

But  the  main  question  is,  Can  a  contract  to  pay  in  silver  or 
gold  dollars  be  satisfied  by  payment  in  any  other  kind  of 
money  ?  Congress,  by  the  Legal  Tender  act,  has  made  a  paper 
dollar  the  equivalent  of  a  gold  or  silver  dollar.  Having  the 
power  to  establish  and  regulate  the  value  of  coin,  it  has 
depreciated  the  value  of  gold  and  silver  coin,  for  every  pur- 
pose cognizable  by  courts,  to  the  level  of  paper  money,  and 
has  declared  that  one  of  its  notes,  representing  the  value  of 
one  hundred  cents,  shall  be  equal  to  a  gold  or  silver  dollar, 
representing  the  value  of  the  same  number  of  cents.  The 
power  is  not  confined  to  paper  money.  Any  other  substance 
might  be  made  the  medium  of  exchange  and  declared  lawful 
money.  The  uncoined  and  unstamped  bits  of  silver  of  the 
ancients,  which  were  weighed  out,  and  not  counted,  and  the 
wampum  of  the  Indians,  were  money.  Money  is  the  mere 
representative  or  supposed  representative  of  definite  value. 
The  precious  metals  among  all  civilized  nations  are  the  usual 
accepted  representatives.  Gold  and  silver  are  standards  of 
value  which  regulate,  in  a  greater  or  less  decree,  all  other 
values.  Any  other  standard  of  value  would  do  the  same  thing. 
A  ton  of  coal  or  a  barrel  of  flour,  if  made  by  law  the  standard  of 
value,  would  regulate  and  adjust  all  other  values,  gold  as  well 
as  merchandise.  Gold  and  silver  coin  at  their  established 
value,  for  all  legal  purposes,  do  not  change ;  they  are  never 
depreciated  or  appreciated.  It  is  erroneous  to  say  the  market 
for  gold  fluctuates,  except  when  it  is  trafficked  in  as  a  commod- 
ity. As  coin  or  a  medium  of  currency,  its  value  as  fixed  by 
law  does  not  change  with  the  mutations  of  trade  and  commerce. 
All  other  things  rise  or  fall  in  the  fluctuations  of  business  by 
comparison  merely,  Congress  having  created  paper  money, 
and  rendered  it  nominally,  for  all  legal  purposes,  equal  to  gold, 
there  no  longer  remains,  in  legal  contemplation,  any  differ- 
ence between  them.  The  practical  or  actual  depreciation  of 
the  former  below  the  value  of  gold  is  not  produced  by  any  law, 


NEW  SEEIES;  VOL.  I.   ,  179 

Wilson  v.  Morgan. 

but  is  occasioned  by  the  laws  of  trade,  of  supply  and  demand, 
and  other  causes  for  which  the  law  is  not  accpuntable.  Used 
in  commerce  with  foreign  countries,  gold  and  silver  are  the 
only  accepted  mediums  of  exchange,  and  their  value  is  attri- 
butable to  their  universal  appreciation  and  currency  among 
all  nations.  In  domestic  commerce,  however,  they  lose  some 
of  their  importance  by  the  substitution  of  other  standards  of 
value,  which  are  made  their  equivalent.  As  an  article  for 
traffic,  gold,  either  in  coin  or  bullion,  is  regulated  by  the  same 
rules  that  govern  other  commodities.  Contracts  for  its  pur- 
chase or  sale  are  valid,  and  are  regarded  like  contracts  for  the 
purchase  or  sale  of  merchandise.  There  is  a  wide  difference, 
however,  between  gold  or  silver  as  merchandise,  and  as  money. 
A  contract  to  buy  or  sell  gold  cannot  be  specifically  enforced — 
an  action  for  damages  being  entirely  adequate ;  the  rule  of 
damages  being  in  such  a  case,  probably,  the  market  value  of 
the  gold.  As  circulating  mediums,  gold  and  silver  are  not 
subjected  to  any  of  the  rules  or  principles  which  regulate  con- 
tracts. They  are  used  only  to  purchase  property,  to  discharge 
obligations  and  pay  debts.  A  paper  dollar  having  been  made 
equal  to  a  gold  dollar,  it  must  be  accepted  as  such  in  satisfac- 
tion of  any  contract  for  the  payment  of  money,  and  no  form 
or  force  of  words  can  be  used  by  contracting  parties  to  give 
to  a  gold  dollar  a  legal  value  as  money  above  a  paper  dollar. 
A  dollar  is  one  hundred  cents,  no  more,  no  less,  whether  it  is 
silver,  gold  or  paper,  and  when  Congress  declares  that  a  paper 
dollar  shall  be  current,  and  pass  for  and  represent,  and  be  of 
the  value  of  one  hundred  cents,  for  all  purposes  of  traffic  and 
paying  debts,  it  becomes  the  equivalent  of  one  hundred  cents 
in  any  other  substance  or  form. 

It  has  been  strongly  urged  that  Congress,  in  declaring  paper 
money  a  legal  tender  in  payment  of  debts,  has  recognized  and 
preserved  a  distinction  between  it  and  coin,  and  the  exception 
in  the  statute,  of  duties  on  imports  and  interest  on  the  public 
debt,  is  mainly  relied  on  to  establish  such  distinction.  It  is 
true  that  Congress  has  also,  from  time  to  time,  authorized  the 
issuing  of  bonds  and  notes,  the  interest  and  principal  of  which 
is  expressly  payable  in  coin  (12  U.  S.  Statutes  at  Large,  345, 
§  5  ;  709,  §  1 ;  13  Id.,  13).  Such  l>onds  and  notes,  however, 
were  to  become  a  part  of  the  public  debt  of  the  country,  and 
were  accordingly  brought  within  the  great  leading  principle 


180  ABBOTTS'  PRACTICE  REPORTS. 

Wilson  v.  Morgan. 

of  the  government,  of  paying  in  specie,  which  has  existed  at 
intervals  for  moje  than  three-quarters  of  a  century,  having 
been  originally  enacted  in  1789,  re-enacted  in  1840  and  again 
.in  1846.  The  exception,  therefore,  in  the  statute,  of  duties 
on  imports,  and  interest  on  the  public  debt,  as  well  as  all  sub- 
sequent legislation  creating  or  prescribing  the  manner  of  pay- 
ment of  the  public  debt,  are  but  re-enactments  of  the  acts 
referred  to,  and  especially  of  the  act  commonly  denominated 
the  Sub-Treasury  act,  passed  by  Congress  in  1840  (5  U.  S. 
Statutes  at  Large,  385)  and  the  act  of  Congress  in  1846,  (9  Id., 
59).  Those  acts  provided  that  all  sums  accruing  or  becoming 
payable  to  the  United  States  for  duties,  taxes,  sales  of  public 
lands  or  other  debts,  should  be  paid  in  gold  and  silver  only, 
and  that  all  payments  by  the  United  States  should  also  be 
made  in  gold  and  silver  coin  only.  It  was  not  intended  by  the 
Legal  Tender  act  of  1862,  nor  by  any  of  the  subsequent  acts, 
to  change  the  policy  of  the  general  government  of  paying  in 
specie,  and  the  exception,  therefore,  became  necessary  merely 
to  preserve  the  provisions  of  former  statutes.  Since  the  pas- 
sage of  the  act  of  August,  1846,  payments  to  and  by  the  gen- 
eral government  have  been  made  in  coin  only,  or  in  notes 
issued  under  the  authority  of  the  United  States  and  directed 
to  be  received  by  law.  In  thus  following  the  long  established 
practice  of  the  government  of  paying  in  coin  only,  Congres3 
has  indicated  nothing  that  could  be  construed  into  a  design  to 
create  any  legal  difference  between  gold  or  silver  and  paper 
money,  as  a  legal  tender  in  payment  of  private  debts.  Indeed, 
the  exception  gives  force  to,  and  explains  the  meaning  of, 
the  previous  parts  of  the  sentence. 

From  the  view  which  I  have  here  expressed  it  follows, 
necessarily,  it  seems  to  me,  that  a  contract  which  creates  a 
debt,  which  debt  can  be  paid  with  money,  can  be  satisfied  bj 
any  money  which  is  a  legal  tender  at  the  time  the  debt  is  to 
be  paid,  and  can  be  satisfied  in  no  other  way.  Indeed,  I  do 
not  see  how  a  contract  can  be  framed  by  which  a  party  to  it 
could  be  compelled  to  pay  money  in  silver  or  gold,  when  some 
other  substance  is  made  by  law  sufficient  to  satisfy  the  debt. 
Let  us  test  it  by  an  example.  Suppose  the  plaintiffs  had  sued 
to  recover  the  freight,  would  the  judgment  have  been  for  so 
many  dollars  in  silver  and  gold  ?  Such  a  judgment  could  not 
be  rendered.  The  recovery  would  be  for  so  many  dollars,  and 


NEW  SERIES;  VOL.  L  181 

Wilson  v.  Morgan. 

the  judgment  could  be  satisfied  by  the  payment  of  the  number 
of  dollars,  in  any  money  which  was  a  legal  tender  at  the  time. 
The  defendants'  consignors  had  agreed  to  pay  a  certain  sum 
of  money,  and  they  had  agreed  that  it  should  be  paid  in  silver 
and  gold  dollars.  Could  the  owners  have  required  a  specific 
performance  of  the  contract?  Certainly  not.  It  was  to  pay 
money,  not  gold  and  silver  dollars,  and  the  sum  of  money 
only  was  recoverable.  This  rule  is  recognized  and  well  settled 
when  applied  to  contracts  payable  in  chattels  (Pinney  v.  Glea- 
6on,  5  Wend.,  393  ;  Rockwell  v.  Rockwell,  4  Hill,  164). 

I  know  it  is  said  that  the  practicable  or  marketable  difference 
in  value  of  paper  money  and  coin  must  be  presumed  to  have 
been  within  the  contemplation  of  parties  engaging  to  pay  in 
coin,  and  that,  therefore,  such  difference  should  be  recoverable 
as  damages,  and  such  seems  to  have  been  the  view  taken  by  the 
referee  in  this  case.  It  is  also  supposed  that  upon  a  contract  to 
pay  a  sum  of  money  in  gold,  a  recovery  may  be  had  for  the 
value  of  gold,  as  ascertained  by  comparison  with  paper  money. 
But  the  difficulty  with  the  suggestion  is,  that  it  does  not  recog- 
nize or  admit  the  distinction  which  exists  between  gold  as  a 
commodity  of  traffic,  and  gold  used  as  money.  A  contract  to 
deliver  one  thousand  dollars  of  gold  is  a  very  different  contract 
from  one  to  pay  such  sum  in  gold.  The  former  can  be  specifi- 
cally enforced,  and  the  other  can  be  satisfied  by  gold  or  its 
equivalent.  Money,  being  the  common  measure  of  all  things, 
has  not,  like  other  things,  any  particular  function.  It  takes  the 
place  of  all  other  things,  but  is  represented  only  by  standards 
created  by  law.  Gold  in  bars  is  no  more  "money"  than  are 
pigs  of  iron,  lead  or  copper.  Like  them  it  may  be  bought  and 
sold  by  weight ;  but  until  it  is  "  coined  "  and  the  value  of  the 
coin  is  ascertained  and  declared  by  law,  it  is  no  more  a  medium 
of  exchange  or  currency  than  any  other  metal  would  be. 

I  am  unacquainted  with  any  other  rule  of  damages  for  the 
non-payment  of  money,  other  than  the  legal  rate  of  interest 
upon  it.  At  common  law  not  even  interest  was  recoverable, 
either  as  an  incident  to  the  debt  or  otherwise ;  but  statutes  and 
adjudications  have  relaxed  the  common  law,  and  it  is  now  al- 
lowed as  damages  (Sedg.  on  Damages,  234).  "  Interest,"  says 
DOMAT,  liv.  iii.,  tit.  v.,-  sec.  1,  "  is  the  name  applied  to  the  com- 
pensation which  the  law  gives  to  the  creditor  who  is  entitled  to 
recover  a  sum  of  money  from  the  debtor  in  default."  The  loss 


182  ABBOTTS'  PKACTICE  KEPORTS. 

Wilson  v,  Morgan. 

experienced  by  those  who  are  not  paid  at  maturity  is  as  diversi- 
fied as  the  use  they  might  make  of  the  money,  and  as  unfore- 
seen as  the  wants  from  which  the  injury  might  arise.  But  no 
such  loss  is  recoverable.  The  damages  are  limited  to  the  inflic- 
tion of  interest  merely.  The  recovery  of  the  current  rate  of  ex- 
change, besides  interest,  upon  a  debt  contracted  in  Great  "Brit- 
ain, was  refused  in  Martin  v.  Franklin  (4  Johns.,  124),  and  in 
Scofield  v.  Day  (20  Id.,  102),  and  I  do  not  think  a  case  can  be 
found  which  sustains  any  measure  of  damage  for  the  non-perr 
formance  of  a  contract  to  pay  money,  other  than  interest  upon 
the  sum  in  default.  To  adopt  any  other  measure  would  destroy 
the  efficacy  of  the  Legal  Tender  act,  and  limit  its  effect  by  ad- 
mitting factitious  value  to  regulate  the  damages. 

The  plaintiffs  view  cannot,  therefore,  in  my  judgment,  be  sus- 
tained, upon  any  principle  applicable  to  the  recovery  of  the 
difference  in  value  between  paper  and  gold  money  as  damages ; 
nor  upon  any  principle  applicable  to  the  specific  performance  of 
contracts;  and  no  other  principle  has  been  suggested  upon 
which  it  can  be  sustained.  The  contract  in  this  case  was  to  pay 
a  sum  of  money  which  decame  a  debt.  The  offer  of  money 
which  had  been  made 'a  legal  tender  in  payment  of  all  debts, 
was  sufficient  to  discharge  the  obligation  ;  and  the  agreement  to 
pay  in  silver  and  gold  dollars  had  no  greater  effect  than  if  it 
had  been  to  pay  in  the  "  lawful  money  of  the  country." 

But  the  question  is  not  new  nor  without  authority.  The  cases 
in  the  Court  of  Appeals,  before  referred  to,  substantially  deter- 
mine the  question.  The  moment  the  validity  of  the  act  is  as- 
sumed, the  consequences  flowing  from  it  are  apparent.  Judge 
DAVIES  says  (page  459),  "  it  is  the  lawful  money  of  the  United 
States,  made  such  by  authority,  that  can  only  be  effectually  used 
in  the  payment  of  debts,  without  reference  to  the  intrinsic  value 
of  the  thing  tendered  or  paid."  We  were  referred  on  the  argu- 
ment to  decisions  made  in  some  of  the  States  of  the  Union  en- 
tertaining views  apparently  opposed  to  those  I  have  here  ex- 
pressed. As  we  have  been  furnished  with  only  newspaper 
reports  of  these  cases,  we  cannot  be  certain  of  the  precise  ques- 
tions raised  and  decided.  The  case  of  Mervin  v.  Sailor,  in  the 
District  Court  of  Pennsylvania,  held  that  a  quit  rent  payable  in 
"  lawful  silver  money "  could  not  be  extinguished  by  the  pay- 
ment of  a  sum  in  gross  in  legal  tender  notes.  But  the  decision 
was  solely  upon  the  ground  that  the  quit  rent  was  not  a  debt, 


NEW  SERIES ;  YOL.  I.  183 

Wilson  v.  Morgan. 

and,  therefore,  not  within  the  provisions  of  the  Legal  Tender  act. 
The  right  to  satisfy  a  debt  with  legal  tender  money  is  fully  re- 
cognized. The  rent  in  that  case  was  payable  in  "  silver  weigh- 
ing seventeen  pennyweights  and  six  grains,"  and  the  learned 
Justice  HARE  says,  that  neither  could  the  payment  of  such  rent 
be  specifically  enforced,  nor  could  the  difference  in  value  be- 
tween the  silver  and  legal  tender  money  be  recovered,  as  dam- 
ages. Two  nisi  prius  cases  in  the  Supreme  Court  of  this  dis- 
trict were  also  referred  to  (Chapin  v.  Pretzfelder,  Prouty  v.  Pot- 
ter), and  one  case  at  special  term  in  this  State  (Luling  v. 
Atlantic  Mutual  Insurance  Co.,  30  How.  Pr.,  69).  The  first 
two  cases  do  not  seem  to  have  been  much  considered,  and  the 
report  of  them  is  too  meagre  to  enable  us  to  see  what  was  in- 
tended to  be  decided ;  and  the  last  case  was  a  proceeding  in 
equity  to  require  the  payment  of  dividends  in  gold.  There  is 
nothing,  therefore,  in  any  of  these  cases,  beyond  a  mere  dictum 
in  two  of  them,  which  is  hostile  to  the  views  we  have  here  taken. 
On  the  other  hand,  we  were  referred  to  numerous  decisions  in 
the  State  courts,  extracted  from  newspapers,  sustaining  our  po- 
sition. The  only  one  which  has  got  into  the  books  is  "Warnibold 
v.  Shlicting  (16  Iowa,  243),  in  which  the  Supreme  Court  of 
that  State  held  that  a  promissory  note  payable  'in  "United 
*  States  gold  "  was  satisfied  by  a  tender  of  legal  tender  notes. 
The  opinion  of  the  Chief  Justice  is  able,  and  his  reasoning,  to 
my  mind,  conclusive. 

My  conclusion  is  that  the  charter  party  requiring  the  freight 
to  be  paid  in  silver  and  gold  dollars,  could  be  satisfied  by  pay- 
ment in  legal  tender  notes,  and  that  a  teiider  of  the  freight  in 
such  notes  discharged'  the  debt.  The  referee  should,  therefore, 
have  held  the  tender  sufficient,  and  it  was  error  to  award  judg- 
ment for  the  plaintiffs. 

.    The  judgment  must  be  set  aside  and  a  new  trial  ordered,  with 
costs  of  the  appellants  to  abide  the  event. 

GAKVIN  and  JONES,  JJ.,  concurred. 


184  ABBOTTS'  PEACTICE  REPORTS. 

The  People  v.  Brennan. 


THE  PEOPLE  against  BRENNAK 
Supreme  Court,  First  D istrict ;  Special  Term,  November,  1865. 

MANDAMUS. — PAYMENT  OF  SALARIES  PENDING    CONTEST   AS   TO 
TITLE  TO  OFFICE. 

In  an  action  to  try  the  title  to  an  office,  the  Supreme  Court  at  special  and 
general  terms,  having  decided  in  favor  of  one  party ; — Held,  that  the 
fiscal  officer  of  the  municipal  corporation  was  authorized  in  paying  to  the 
deputy  of  such  party  the  moneys  provided  by  law  for  the  salary  of  such 
deputy. 

Upon  the  Court  of  last  resort  reversing  such  decision  and  declaring  the 
adverse  party  to  be  entitled,  a  mandamus  will  not  lie  at  the  suit  of  the 
deputy  of  the  latter  to  compel  payment,  again,  of  the  salary  for  the  same 
period,  to  him,  in  the  absence  of  any  appropriation  for  the  purpose. 

Application  for  a  mandamus. 

Pending  the  controversy  for  the  office  of  Tax  Commissioners 
for  the  City  and  County  of  New  York,  which  is  fully  reported 
in  People  v.  Woodruff,  32  N.  Y.,  355,  the  Comptroller  of  the 
city,  Brennan,  paid  the  salary  of  the  incumbents'  deputy ;  and 
the  adverse  claimants  having  finally  prevailed,  Morgan,  their 
deputy,  the  relator  in  the  present  proceeding,  moved  for  a  man- 
damus to  compel  payment  of  his  salary. 

C.  Trull,  for  the  defendant,  objected  that  the  relator  had  not 
actually  performed  the  duty  of  a  deputy,  and  that  the  claim 
had  not  been  audited  and  there  were  no  funds  in  the  treasury 
applicable  to  it,  citing,  as  to  the  last  point,  §  5  of  the  act  of  1857, 
relative  to  the  Board  of  Supervisors  of  New  York,  which  pro- 
hibits the  drawing  of  money  from  the  treasury  for  any  purpose 
unless  it  has  been  previously  appropriated  thereto  by  law. 

/.  T.  Williams  and  Mr.  Smyth,  for  the  relator,  as  to  the  first 
objection  cited  and  commented  on  People  v.  Tieman,  8  Abb., 
350. 


NEW  SERIES;  VOL.  I.  185 

The  People  v.  Breanan. 

As  to*tlle  second  objection  counsel  urged  that  audit  was  unneces- 
sary, because  the  amount  of  the  claim,  alleged  in  the  writ,  was 
admitted  in  the  return,  by  omitting  to  deny  it,  and  only  setting 
forth  reasons  why  it  should  not  be  paid ;  moreover,  that  this 
claim  was  not  an  "  account "  within  the  statute,  nor  was  it  against 
the  city  ;  and  that  the  relator's  only  remedy  was  by  mandamus. 

As  to  the  objection  on  the  ground  of  want  of  funds,  he  cited 
and  commented  on  the  act  of  1859,  §  3  ;•  The  Queen  v.  The 
Trustees,  &c.,  1  Q.  B.,  860 ;  see  also  I  Gale  &  Z>.,218  ;  Tapping 
on  Mind.,  GO  Law  Library,  359 ;  Queen  v.  Eastern  Counties 
Kailway,  10  Ad.  &  El,  531. 

CLERKE,  J. — I  think  that  the  defendant  was  justified  in  pay- 
ing the  salary,  now  demanded  by  the  relator,  to  the  actual  in- 
cumbent of  the  office,  during  the  period  in  question.  •  The 
Special  and  General  Terms  of  this  Court  decided  that  the  Com- 
missioners who  appointed  him,  were  themselves  legally  appoint- 
ed. Before  this  decision  was  reversed  by  the  Court  of  Appeals, 
and  while  it  was  operative  as  the  law,  and,  consequently,  binding 
upon  him,  the  defendant  paid  to  the  incumbent  the  money 
which  had  been  appropriated,  and  which  was  then  in  the  treas- 
ury, for  such  payment.  If  he  was  justified  in  doing  this,  he 
cannot  now  be  compelled  to  pay  the  relator  out  of  the  public 
money  under  his  control.  There  is  no  appropriation  for  such 
payment ;  and,  consequently,  there  is  no  money  in  the  treasury 
for  this  specific  purpose.  It  would  be  a  violation  of  law  for  the 
Comptroller  to  take  money  appropriated  for  some  other  purpose, 
and  apply  it  to  this.  I  cannot  direct,  much  less  compel  him  to 
do  what  would  amount  to  an  infringement  of  his  duty  and  of 
the  law.  Whatever  other  'remedies  the  relator  may  have,  if  he 
has  any,  this  application  cannot,  in  my  opinion,  be  granted. 

Motion  fo"  «  mandamus  denied 


186 


Robinson  v.  The  Corn  Exchange  Insurance  Company. 


ROBINSON   again'st   THE    CORN   EXCHANGE,  &o. 
INSURANCE  COMPANY. 

New  York  Superior  Court ;  General  Term,  May,  1863. 

INSURANCE. — DENIAL   m   PLEADING. — INTEREST. — MEASURE   OF 

DAMAGES. 

Where  insurers,  having  insured  one  who  has  a  special  property  in  goods,  for 
account  of  whom  it  may  concern,  after  a  loss  and  abandonment  intervene 
and  recover  a  part  of  the  goods,  as  they  have  a  right  to  do,  and  receive 
the  proceeds,  without  knowing  the  owner,  the  latter  cannot,  in  an  action 
against  them  for  money  had  and  received,  recover  interest  thereon  for 
the  time  elapsing  before  they  had  any  notice  of  his  claim. 

An  allegation  in  the  complaint  that  the  defendants  sold  the  plaintiffs'  prop- 
erty for  a  certain  sum,  and  that  they  "  have  had  the  use  of,  and  in- 
terest upon,  said  money  since  it  was  received  as  aforesaid  by  the  defend- 
ants for  the  plaintiffs'  use,"  is  sufficiently  controverted  by  a  denial  in 
defendants'  answer  that  they  sold  the  plaintiffs'  property,  or  that  they 
received  therefore  any  money  whatever  to  the  plaintiffs'  use. 

The  right  to  interest  in  such  a  case  is  a  question  of  law,  not  of  fact.  It  is 
only  in  the  class  of  cases  where  interest  may  be  charged  against  a  de- 
fendant as  damages,  that  he  has  a  right  to  have  the  jury  pass  upon  the 
question. 

In  such  action  the  necessary  expenses  of  the  defendants,  paid  in  recovering 
and  selling  the  goods  insured,  are  to  be  allowed  to  the  defendants,  to 
be  deducted  from  the  proceeds. 

Appeal  by  the  plaintiffs  from  a  judgment  entered  in  their 
favor,  on  a  verdict  rendered  by  the  jury  pursuant  to  the  direc- 
tion of  the  court,  on  the  trial  of  the  cause. 

The  plaintiffs,  Shadrack  Robinson  and  Charles  H.  Cummings, 
sued  for  money  had  and  received  by  the  defendants  to  their 
use,  alleging  in  the  complaint  that  in  1854  the  defendants  sold 
a  quantity  'of  corn  belonging  to  the  plaintiffs,  on  account  of  the 
plaintiffs,  and  that  the  defendants  received  for  it,  in  or  about  the 


NEW  SERIES;  VOL.  I.  187 

Robinson  v.  The  Corn  Exchange  Insurance  Company. 

months  of  October  and  November,  1854,  for  the  use  of  the  said 
plaintiffs,  and  for  them,  two  thousand  three  hundred  and 
twenty-six  dollars  and  thirty-seven  cents.  That  the  plaintiffs 
have  often  requested  the  defendant  to  pay  them,  the  plaintiffs, 
the  said  money  thus  received  by  the  defendants,  but  the  defend-  , 
ants  have  neglected  and  refused,  and  still  neglect  and  refuse  to 
do  so,  and  'that  the  said  defendants  have  had  the  use  of,  and  inter- 
est upon,  said  money  since  it  was  received  as  aforesaid  by  said 
defendants,  for  the  plaintiffs'  use. 

Judgment  was  demanded  for  the  sum,  with  interest,  from 
November,  1854. 

The  cause  was  tried  on  the  18th  day  of  June,  1861,  before 
Chief  Justice  BOSWORTH  and  a  jury. 

The  facts  proved  were  as  follows : 

In  September,  1854,  the  plaintiffs,  by  their  agent,  shipped  a 
quantity  of  corn  at  the  city  of  Buffalo,  on  board  of  tow  boats 
owned  by  Edmund  Savage,  consigned  to  N.  H.  Wolf  &  Co.  in  the 
city  of  New  York.  Savage  effected  an  insurance  on  the  corn  in 
the  defendants'  company.  At  Albany  the  corn  was  trans-shipped 
on  board  the  barge  Hudson,  which,  on  its  passage  to  New  York, 
became  disabled,  and  partly  sunk.  The  defendants  intervened 
to  save  the  corn  from  total  loss,  and  got  up  a  portion  of  it, 
which  they  sold  at  auction  for  the  gross  sum  of  two  thousand 
three  hundred  and  twenty-six  dollars  and  thirty-seven  cents. 
The  expense  of  raising  the  barge  to  get  at  the  corn,  the  freight 
from  Castleton,  where  she  sunk,  to  New  York,  and  the  charges 
for  taking  out  and  selling  the  corn,  amounted  to  seven  hundred 
and  sixty-nine  dollars  and  fifty-five  cents,  leaving  in  the  defend- 
ants' hands  as  net  proceeds,  the  sum  of  one  thousand  five  hun- 
dred and  fifty-six  dollars  and  eighty-two  cents. 

This  was  proved  by  a  stipulation  entered  into  between  the 
parties,  which  stated  that  the  defendants,  in  saving  the  corn, 
paid  certain  sums  specified  for  that  purpose,  but  nothing  was 
said  in  the  stipulation,  nor  was  there  any  other  evidence  as  to 
these  expenditures  being  reasonable  or  necessary. 

Edmund  Savage  commenced  a  suit  against  the  defendants  on 
his  policy  of  insurance  in  1855.  In  the  complaint  in  that  suit, 
Savage  claimed  to  recover  for  a  total  loss ;  but  there  was  no 
count  in  the  complaint  claiming  the  proceeds  of  the  corn.  That 


188  ABBOTTS'  PEACTICE  EEPOKTS. 

Robinson  v.  The  Corn  Exchange  Insurance  Company. 

action  was  tried  in  April,  1861,  and  Savage  recovered  the  value 
of  the  corn,  less  the  amount  received  by  the  defendants  for  the 
sale  of  the  corn. 

On  the  13th  of  March,  1860,  the  plaintiffs  demanded  of  the 
defendants  payment  of  the  sum  received  by  them  on  the  sale  of 
the  corn,  which  was  refused. 

Upon  the  trial  of  the  present  action,  the  Grief  Justice  in- 
structed the  jury  that  the  plaintiffs  can  only  recover  the  net 
proceeds  of  the  corn  ;  and  interest  only  from  the  13th  of  March, 
1860,  the  date  of  their  demand  ;  and  he  directed  them  to  find  a 
verdict  accordingly  for  the  plaintiffs. 

The  plaintiffs'  counsel  excepted  to  the  charge  of  the  judge, 
and  the  jury  found  a  verdict  for  the  plaintiffs  for  one  thousand 
six  hundred  and  ninety-four  dollars  and  fifty-six  cents,  for  which 
judgment  was  entered.  The  plaintiffs  appealed. 

James  Crorribie,  for  the  plaintiffs  appellants. — I.  The  plain- 
tiffs were  entitled  to  recover  interest  upon  the  net  proceeds  of 
the  corn  from  the  time  the  defendants  received  them.  1.  Be- 
cause the  defendants  had  used  the  money,  and  had  received  the 
interest  upon  it,  as  is  admitted  in  the  pleadings.  When  a  per- 
son uses  another's  money,  or  derives  interest  therefrom,  he  is  as 
much  bound  to  pay  interest  thereon  as  he  is  the  principal  (1 
Am.  Lead.  Cas.,  358,  and  cases  cited ;  Dodge  v.  Perkins,  9 
Pick.,  369 ;  Miller  v.  Bank  of  Orleans,  5  Whar.,  503).  2.  As 
matter  of  law  upon  the  facts,  the  plaintiffs  were  entitled  to  re- 
cover interest  upon  the  net  proceeds,  (a.)  Because  the  defend- 
ants sold  the  corn  without  their  consent,  and  therefore  without 
any  right  or  authority  to  do  so  (2  Phil.  Ins.,  333,  335,  and  cases 
cited ;  1  Am.  Lead.  Cas.,  360,  and  cases  cited ;  Greenley  v. 
Hopkins,  10  Wend.,  96 ;  Chauncey  v.  Yeaton,  1  N.  II.,  151 ; 
American  Ins.  Co.  v.  Center,  4  Wend.,  52  ;  Bryant  v.  Common- 
wealth Ins.  Co.,  13  Pick.,  553  ;  Parson's  Merc.  Law,  380).  b. 
Because  the  defendants  ought  in  good  faith  to  have  paid  over 
the  money  received  by  them,  as  soon  as  it  was  received,  without 
any  demand  therefor  (Stacy  et  al.  v.  Graham,  14  N.  Y.  [4 
Jfera.],  492 ;  Lynch  v.  De  Yiar,  3  Johns.  Cos.,  303 ;  Pease  v.  Bar- 
ber, 3  Caines,  266 ;  Van  Eensselaer  v.  Jewett,  5  Den.,  135  ;  2 
N.  Y.  [2  Comet.],  135 ;  Mason  v.  Waite,  17  Mass.,  560 ;  1  Doll., 
313,  316 ;  1  Am.  L.  Cas.,  341,  345.  The  pendency  of  the  suit 


NEW  SERIES;  YOL.  I.  189 

Kobinson  v.  The  Corn  Exchange  Insurance  Company. 

of  Edward  Savage  upon  tlie  policy  was  no  excuse  for  the  non- 
payment of  the  money,  as  he  did  not  own  the  corn,  and  could 
not  recover  the  money  received  for  it. 

II.  If  the  Court  overruled  the  first  point,  then  we  submit 
that  the  judge  erred  in  not  submitting  the  question  of  interest 
to  the  jury  (Stacy  v.  Graham,  14  N.  T.  [4  jj&pn.],  402  ;  1  Am. 
L.  Gas.,  352  ;  Van  Rensselaer  v.  Jewett,  5  Den.,  135  ;  1  Jo/ins., 
315  ;  Watkinson  v.  Laughton,    8  Johns.,  213 ;  Richmond  v. 
Bronson,  5  Den.,  55). 

III.  The  plaintiffs  were  entitled  to  recover  from  the  defend- 
ants the  gross  amount  received  by  them  for  the  corn. 

The  defendants  had  no  right  to  sell  the  plaintiffs'  corn  with- 
out consulting  them,  under  the  circumstances  detailed  in  the 
case.  In  order  to  excuse  a  sale,  they  should,  have  made  out  a 
case  of  absolute  necessity,  in  order  to  save  the  corn  from  des- 
truction. No  such  necessity  existed  here.  It  appears  from 
one  of  the  items  of  expense,  that  they  took  a  portion  of  the 
corn  to  New"  York.  If  they  had  time  to  do  this,  they  could 
have  notified  the  plaintiffs  (ZPhill.onlns.,  333,  335,  and  cases 
there  cited). 

IV.  At  any  rate,  the  question  of  the  necessity  and  reason- 
ableness of  the  defendants'  charges  for  expenses  should  have 
been  left  to  the  jury. 

T.  C.  T.  Buckley,  for  defendants,  respondents. — I.  The  ruling 
of  the  judge,  at  the  trial,  on  the  subject  of  interest,  was  cor- 
rect (Van  Rensselaer  v.  Jewett,  2  Corns.,  140  ;  Sedgw.  on  Dam- 
ages, Ed.  1858,  379  ;  Phelps  v.  Bostwick,  22  J3arb.,  318  ;  Wil- 
liams v.  Storrs,  6  Johns.  Ch.,  358 ;  Harrington  v.  Hoggart,  1 
Barn.  &  Adol.,  577,  574).  There  was  no  proper  demand 
prior  to  March  13th,  1860.  The  order  from  Savage,  if  com- 
plied with,  would  have  been  no  bar  to  plaintiffs'  claim, 
as  he  was  not  their  agent,  and  had  no  right  to  transfer  the 
property  in  the  corn. 

II.  There  is  no  admission  or  proof  that  defendants  have 
employed  the  money  in  question,  or  derived  any  profit  from 
its  use.  But  the  defendants,  being  mere. stakeholders,  would 
not  be  liable  for  interest,  even  if  they  used  tLe  money  (Jones 
v.  Mallory,  22  Conn.,  392). 


190  ABBOTTS'  PRACTICE  REPORTS. 

Eobinson  v.  The  Corn  Exchange  Insurance  Company. 

III.  In  no  aspect  of  the  case  are  defendants  liable  for  the 
gross  proceeds  of  the  corn. 

BY  THE  COURT.* — MONELL,  J. — The  only  exceptions  argued 
upon  this  appeal  were  to  the  charge  of  the  judge,  restricting 
the  recovery  to  the  net  proceeds,  and  interest  from  the  time 
the  demand  was  made,  and  directing  a  verdict  for  such 
amount.  The  action  for  money  had  and  received,  is  an  equita- 
ble action,  and  the  party  must  show  he  has  equity  on  his  side. 
The  rule  in  England  is,  that  interest  is  not  recoverable  in  this 
action  (Walker  v.  Constable,  1  Bos.  &  Pull.,  307),  but  it  is 
otherwise  in  this  country  (Pease -v.  Barber,  3  Caincs,  266 ;  Peo- 
ple v.  Gasherie,  9  Johns.  R.,  71 ;  Gillet  -y.  Yan  Rensselaer,  15 
N.  Y.  R>,  397).  In  this  State  interest  is  allowable  where  the 
circumstances  of  the  case  show  that  the  plaintiff  is  equitably 
entitled  to  it. 

The  corn  was  rescued  from  total  loss  in  October,  1854,  and 
the  proceeds  of  the  sale  were  received  by  the  defendants  in 
November,  1854.  The  insurance  was  effected  by,  and  in  the 
name  of  Edmund  Savage,  who  sued  the  defendants  upon  the 
policy  to  recover  as  for  a  total  loss.  There  does  not  appear 
to  be  any  evidence  in  the  case  that,  at  any  time  previous  to 
the  demand  of  the  13th  of  March,  1860,  the  defendants  knew 
or  had  any  reason  to  suppose  the  plaintiffs  owned  or  had  any 
interest  whatever  in  the  corn.  We  asked  the  plaintiffs'  coun- 
sel in  vain  to  point  us  to  any  testimony,  showing  or  tending  to 
show  such  knowledge,  or  anything  which  was  calculated  to 
even  put  the  defendants  upon  inquiry.  "We  are  therefore  to 
assume,  that  the  defendants  were  at  all  times  ignorant  of  the 
right  of  the  plaintiffs  to  the  proceeds  of  the  corn,  until  they 
demanded  payment  therefor.  Indeed,  until  the  determina- 
tion of  the  suit  upon  the  policy,  in  which  Savage  sought  to 
recover  as  for  a  total  loss  of  all  the  corn,  no  action  would  lie 
against  the  defendants  for  the  proceeds  of  the  corn  sold,  either 
by  Savage,  or  the  plaintiffs.  Savage  was  liable  to  the  plain- 
tiffs, as  the  carrier  of  the  corn,  and  a  recovery  upon  the  policy 
by  him  as  for  a  total  loss  would,  indisputably,  have  entitled 
the  defendants  to  retain,  as  their  own,  the  proceeds  of  the 

*  Present,  BAKBOUB  and  MONELL,  JJ. 


NEW  SERIES;  VOL.  I.  191 

r  __ _ - , 

Robinson  v.  The  Corn  Exchange  Insurance  Company. 

corn  sold.  Until  the  extent  of  the  defendants'  liability  wa3 
fixed  by  the  judgment  in  the  suit  of  Savage  against  them,  the 
plaintiffs  could  not  call  on  the  defendants  for  payment.  This 
last  action  did  not  terminate  until  April  llth,  1861,  .when  the 
jury,  under  the  direction  of  the  court,  deducted  from  their 
verdict  the  net  proceeds  of  the  corn  sold  by  the  defendants. 

It  is  at  least  questionable  whether  any  recovery  could  be 
had  in  this  action,  for  principal  or  interest,  until  the  termina- 
tion of  the  other  suit  in  April,  1861. 

There  is  nothing  in  the  circumstances  of  this  case,  which 
upon  the  principle  of  ex  mquo  et  bono,  required  the  defendants 
to  pay  the  money  to  the  plaintiffs,  or  to  any  other  p'arty,  until 
their  right  to  retain  it  was  determined  in  the  other  suit.  And 
even  if  this  were  not  so,  and  the  defendants  were  mere  depos- 
itors of  the  money,  they  could  not  in  conscience  be  called 
upon  to  pay  either  principal  or  interest  until  it  was  demanded 
of  them.  In  that  view  they  were  mere  trustees  or  bailors, 
who  are  never,  except  under  special  contract,  chargable  with 
interest  (Utica  Bank  v.  Van  Gieson,  18  Johns.  R.,  485). 

I  am  therefore  of  the  opinion  that  the  charge  of  the  judge, 
if  anything,  was  too  favorable  to  the  plaintiffs ;  but,  as  the  de- 
fendants have  not  appealed,  the  judgment  cannot  be  disturbed 
for  that  reason,  and  the  plaintiffs  cannot  object. 

There  is  no  force  in  the  argument  that  by  the  pleadings  the 
defendants  admitted  that  they  had  had  the  use  of  the  money, 
and  of  the  interest  upon  it  since  they  received  it.  The  denial 
in  the  defendant's  answer,  that  they  sold  the  plaintiff's  corn,  or 
that  they  received  therefor  any  money  whatever  to  the  plain- 
tiffs' use,  is  a  sufficient  denial  that  they  had  the  use  of  the 
money  or  of  the  interest  upon  it. 

The  denial  of  the  substantive  cause  of  action  is  enough 
to  controvert  all  the  mere  incidents  to  it.  Besides,  the  allega- 
tion in  the  complaint  is  equivocal,  and  would  be  true,  if  the 
defendants  had  had  the  use  of  the  money  for  one  day  and  no 
more  before  suit  brought. 

In  rescuing  the  corn,  and  making  sale  thereof,  the  defendants 
paid  from  the  gross  proceeds  necessary  expenses,  which  they 
were  allowed  to  retain  under  the  ruling  of  the  court.  That  the 
defendants  had  a  right  to  intervene  to  save  the  cargo  from  total 
loss  is  not  disputed ;  and  even  if  they  had  no  right  to  sell  with- 


192  ABBOTTS'  PEACTICE  KEPOKTS. 

Kobinson  v.  The  Corn  Exchange  Insurance  Company. 

out  giving  notice  to  the  plaintiffs,  there  is  nothing  to  show  that 
they  had  any  knowledge  of  the  plaintiffs  whatever.  As  the  ac- 
tion is  an  equitable  one,  for  money  received  to  the  use  of  the 
plaintiffs,  there  is  no  principle  in  law  or  morals  which  should 
make  the  defendants  liable  for  any  more  than  they  actually  re- 
ceived. Therefore,  the  necessary  expenses  paid  in  raising  and 
selling  the  corn,  were  properly  allowed  to  be  retained  by  the  de- 
fendants. 

The  right  to  recover  interest  in  a  case  of  this  kind,  is  a  ques- 
tion of  law,  and  not  of  fact,  and  the  judge  properly  refused  to 
submit  it  to  the  jury.  Interest  is  the  incident  to  a  debt,  and 
the  law  fixes  the  time  when  it  begins  to  accrue.  It  is  only  in 
the  class  of  cases  where  interest  may  be  charged  against  a  de- 
fendant as  damages,  that  the  jury  has  a  right  to  pass  upon  the 
question  (Richmond  v.  Bronson,  5  Denio,  55). 

Had  there  been  any  evidence  impeaching  the  reasonableness 
of  the  expenses  incurred  in  rescuing  and  selling  the  corn,  it 
would  probably  have  been  error  to  have  taken  that  question 
from  the  jury.  But  there  is  no  such  evidence ;  and  had  the 
jury,  upon  the  question  being  submitted  to  them,  found,  under 
the  evidence,  that  the  expenses  were  unreasonable,  the  court 
would  have  set  the  verdict  aside,  as  contrary  to  the  evidence. 

There  was,  therefore,  nothing  in  the  case  upon  which  it  was 
necessary  for  the  jury  to  deliberate ;  consequently,  there  was  no 
error  in  directing  a  verdict  for  the  plaintiff. 

The  judgment  should  be  affirmed. 


NEW  SEEIES;  VOL.  I.  193 

The  People  v.  Ferris. 


THE  PEOPLE  against  FERRIS. 


Supreme  Court^  First  District;  General  Term,  November, 

1865. 

CRIMINAL  LAW.  —  CHALLENGE  TO  THE  AJRRAY.  —  EXPRESSION   OF 

OPINION  BY  THE   SHERIFF.  —  YENIRE.  —  DIRECTORY 

STATUTE.  —  DRAWING  JURORS.  —  NEW 

TRIAL.  —  SECOND  INDICTMENT. 

The  expression  of  an  opinion  by  the  sheriff,  as  to  the  guilt  or  innocence  of 
the  prisoner,  is  not  sufficient  cause  of  challenge  to  the  array,  unless  he 
does  some  act,  or  omits  some  duty,  by  reason  of  which  a  juror  called 
upon  to  try  the  case  is  disqualified. 

The  judge  has  power  to  excuse  jurors  without  cause,  who  have  been  empan- 
nelled  for  a  term. 

Under  the  Revised  Statutes,  no  venire  is  necessary  in  criminal  cases. 

The  statute  as  to  the  mode  in  which  jurors  are  to  be  drawn  is  directory;  and 
a  neglect  to  conform  to  its  provisions  is  not,  in  itself,  a  sufficient  ground 
for  setting  aside,  a  verdict  where  the  prisoner  has  not  been  prejudiced.* 

Even  after  th«  arraignment  of  the  prisoner,  and  plea,  and  part  of  the  jury 
called,  the  court  have  power  to  postpone  the  cause,  and  such  commence- 
ment of  a  trial  cannot  be  pleaded  in  bar  of  a  second  indictment  for  the 
same  offence. 

An  order  for  the  continuance  of  the  term  of  the  Court  of  Sessions  beyond 
the  third  week  need  not  be  incorporated  in  the  record  of  judgment  on  a 
conviction  had  during  such  continuance. 

"Writ  of  error  to  the  Court  of  General  Sessions  of  the  city  and 
county  of  New  York. 

*  It  is  a  good  ground  of  challenge  to  the  array,  that  certain  of  the  jurors 
had  not  been  summoned  by  any  legal  authority,  and  that  their  names  had 
been  put  upon  the  list  of  jurors  by  the  clerk  of  the  court  at  their  request, 
without  any  order  having  been  entered  requiring  such  jurors  to  serve 
(McCloskey  v.  People,  5  Park.  Cr.,  308). 

In  empannelling  a  jury  for  the  trial  of  a  felony  at  the  Oyer  and  Terminer 
in  the  county  of  Kings,  it  is  not  erroneous  for  the  court,  after  failing  to  get 
a  jury  from  the  thirty-six  jurors  summoned  for  the  first  six  days  of  the 
court,  under  the  act  of  April  17,  1858,  applicable  to  that  county,  to  refuse  to 
summon  talesman,  and  to  proceed  to  complete  the  jury  from  the  thirty-six 
jurors  summoned  for  the  next  six  days  of  the  court  (Lambertson  v.  Peo- 
ple, 5  Park.  Cr.,  200). 

•   N.  S.—  VOL.  I—  13. 


194  ABBOTTS'  PRACTICE  REPORTS. 

The  People  v.  Ferris. 

The  plaintiff  in  error,  Frank  Ferris,  was  indicted  in  the  court 
below  in  February,  1865,  for  the  murder  of  his  wife,  Mary  Fer- 
ns, on  the  9th  day  of  September,  1864.  At  the  term  of  the 
court  held  on  the  28th  of  February,  1865,  the  plaintiff  in  error 
was  brought  to  trial  upon  the  indictment,  and  was  convicted  of 
murder  in  the  first  degree,  and  judgment  of  death  pronounced 
upon  him,  to  be  executed  on  the  14th  day  of  April,  1865.  Upon 
that  judgment,  the  present  writ  of  error  was  brought. 

J.  II.  Anthon  and  William  F.  Kintzing,  Jr.,  for  the  plain- 
tiff in  error. 

A.  Oakey  Hall,  for  the  people. 

BY  THE  COURT. — LEONARD,  J. — Ferris  was  indicted,  tried  and 
convicted  of  murder  in  the  first  degree,  at  the  Court  of  General 
Sessions  in  this  city. 

The  case  was  tried  on  the  27th  and  28th  of  February,  1865, 
after  the  close  of  the  third  week  of  the  February  term. 

As  it  appears  from  the  return  of  the  clerk,  an  extra  panel  of 
one  thousand  jurors  was  drawn  on  the  7th  day  of  February, 
1865,  in  the  presence  of  certain  officers,  required  by  law  to  at- 
tend, who  were  duly  notified  for  that  purpose,  and,  as  it  also 
appears  from  the  return  of  the  sheriff,  these  jurors  were  all  duly 
summoned.  No  question  is  made  but  that  these  were  the  proper 
officers  to  attend  and  certify  the  drawing  of  jurors. 

The  counsel  for  the  prisoner  challenged  the  array  of  jurors, 
specifying  in  writing  nine  separate  grounds  of  objection.  In 
the  challenge  is  incorporated  the  returns  and  certificates  of 
these  different  officers,  and  it  is  therein  stated  that  the  panel 
of  jurors  was  filed  on  the  13th  of  February,  being  the  same 
panel  then  in  court,  wherefrom  the  jury  to  try  the  said  indict- 
ment were  to  .be  selected. 

The  first  ground  of  challenge  alleges  that  the  sheriff  who  sum- 
moned the  jurors  had  formed  and  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  prisoner. 

The  next  seven  grounds  allege  a  want  of  compliance  with  the 
statutes  in  respect  to  the  drawing  of  the  jurors,  viz. :  the  proper 
officers  did  not  actually  attend  ;  some  of  them  signed  blank  cer- 
tificates which  the  clerk  filled  up  after  the  drawing ;  no  minutes 
of  the  drawing  were  kept ;  no  copy  of  the  minutes  was  delivered 
to  the  sheriff.  The  sheriff  summoned  the  jury  without  any  copy 


NEW   SERIES  ;   VOL.  I.  195 

The  People  v.  Ferris. 

of  the  minutes  being  furnished  to  him  ;  the  ballots  drawn  from 
the  jury  box  were  delivered  to  him,  from  which  he  summoned 
the  jurors ;  and  that  the  panel  or  list  filed  is  not  a  copy  of  the 
minutes  of  the  drawing. 

The  other  ground  of  challenge  is  that  the  recorder,  who  held 
the  court  at  which  the  prisoner  was  tried,  excused  and  excluded 
seven  hundred  and  sixty-four  of  the  jurors  from  attendance,  with- 
out reasonable  cause  shown. 

There  was  no  charge  of  any  fraud  or  corruption  against  any 
of  the  officers  who  drew  or  summoned  the  jurors  or  certified  the 
list;  nor  of  any  injury  or  prejudice  to  the  prisoner. 

The  district  attorney  demurred  to  the  challenge ;  admitted 
the  facts  as  alleged,  and  insisted  that  none  of  the  objections 
were  well  taken. 

The  recorder  sustained  the  demurrer.  The  defendant  then 
interposed  a  special  plea  that  before  the  finding  of  the  indict- 
ment upon  which  he  was  then  arraigned,  another  indictment  for 
the  same  offence  had  been  found  against  him,  which  was  still  in 
full  vigor,  to  which  he  had  pleaded  not  guilty,  and  the  issue  so 
joined  had  been  brought  on  for  trial  in  the  same  court ;  that 
the  prisoner  had  there  challenged  the  array  of  the  jurors, 
which  had  been  overruled ;  that  one  juror  had  been  drawn  ' 
whom  the  prisoner  had  challenged;  that  he  afterwards  withdrew 
his  challenge,  and  consented  that  the  juror  might  be  sworn  in 
chief;  that,  in  opposition  to  the  wishes  of  the  prisoner,  the  Peo- 
ple refused  to  further  prosecute  that  indictment,  and  the  trial 
was  then  postponed,  notwithstanding  his  objection.  A  demur- 
rer to  this  plea  was  put  in  by  the  People,  and  the  prisoner 
joined  issue  thereon.  The  court  sustained  the  demurrer,  and 
gave  judgment  for  the  People.  By  leave  of  the  court,  the  pris- 
oner pleaded  not  guilty  to  the  charge  contained  in  the  indict- 
ment. A  jury  was  then  impanneled  from  the  array  aforesaid, 
and  the  trial  proceeded,  which  resulted  in  the  conviction  of  the 
prisoner. 

1.  The  challenge  to  the  array  on  account  of  the  expression  of 
an  opinion  by  the  sheriff  who  summoned  the  jury,  in  respect  to 
the  guilt  or  innocence  of  the  prisoner,  is  novel  in  its  character, 
and  no  direct  precedent  or  decided  case  has  been  cited  in  sup- 
port of  the  objection.  The  statute  limiting  challenges  to  the 
array,  so  as  to  exclude  any  objection  based  upon  the  interest  in 
the  cause  or  relation  of  the  sheriff  to  either  party  therein,  has 


196  ABBOTTS'  PRACTICE   EEPORTS. 

The  People  v.  Ferris. 

been  urged  on  behalf  of  the  people,  as  one  answer  to  the  chal- 
lenge. 

This  answer  is  not  sufficient.  The  formation  or  expression  of 
an  opinion  by  the  sheriff  as  to  the  guilt  or  innocence  of  the  pris- 
oner, cannot  be  considered  an  interest  in  the  cause,  in  a  crimi- 
nal case  (2  Rev.  Stat.,  420). 

The  interest  referred  to  in  the  statute  is  of  a  pecuniary  na- 
ture. 

The  formation  or  expression  of  an  opinion  by  the  sheriff  has 
no  relation,  by  itself,  to  the  duty  which  the  jurors  have  to  per- 
form in  respect  to  the  trial.  I  am  unable  to  perceive  how  the 
opinion  of  the  sheriff  injures  the  prisoner,  unless  it  be  alleged 
that  he  does  some  act,  or  omits  some  duty,  by  reason  of  which  a 
juror  who  has  formed  or  expressed  an  opinion  in  relation  to  the 
case  he  is  called  on  to  try  would  be  clearly  disqualified,  with- 
out reference  to  the  fact  whether  it  was  favorable  or  unfavorable 
to  the  prisoner — such  a  juror  would  not  be  indifferent.  It  is 
quite  different  in  respect  to  the  sheriff.  In  my  opininion  it  was 
necessary  for  some  other  fact  to  be  alleged  in  the  challenges  to 
render  the  charge  material,  as  that  the  sheriff  had  intentionally 
omitted  to  summon  a  juror ;  or  had  stated  his  opinion  to  some 
juror  /  the  mere  fact  that  the  sheriff  has  formed  or  expressed  un 
opinion,  seems  to  be  wholly  immaterial.  The  same  considera- 
tions also  apply  to  all  the  other  objections.  The  jurors  were 
fairly  drawn  from  the  box,  so  far  as  we  know ;  indeed,  we  nivst 
assume  that  it  is  so,  since  no  allegation  to  the  contrary  is  contained 
in  the  written  challenge.  The  same  persons  were  drawn  and 
summoned  that  would  have  been  had  the  proper  officers  at- 
tended and  witnessed  the  drawing,  as  required  by  law. 

Although  it  was  highly  improper,  perhaps  even  a  misde- 
meanor, in  the  case  of  those  public  officers  who  signed  certificates 
in  blank,  yet  it  is  not  claimed  that  the  smallest  abuse  of  the 
confidence  reposed  by  them  in  the  clerk  took  place,  or  that  any 
change  was  produced  in  the  result  which  would  otherwise .  have 
been  obtained. 

With  the  exception  of  the  charge  of  signing  the  certificate  in 
blank,  to  be  afterwards  filled  up  when  the  drawing  should  be 
completed,  none  of  the  objections  to  the  manner  of  drawing  the 
list  of  jurors,  can  be  considered  anything  more  than  trifling  ir- 
regularities. These  questions,  including  that  of  signing  the  cer- 
tificate in  blank,  were  not  such  as  can  be  raised  by  the  prisoner. 


NEW  SERIES ;  VOL.  I.  197 

The  People  v.  Ferris. 

They  are  between  the  People  and  the  officers.  The  statute  di- 
rects how  duties  of  the  officers  who  draw  and  summon  jurors 
shall  be  performed  ;  and  although  it  provides  that  it  shall  not 
be  done  in  any  other  way,  it  is  not  of  any  materiality  to  the 
prisoner,  unless  some  change  results  in  the  names  that  would 
otherwise  have  been  drawn  or  summoned  as  jurors. 

So  in  respect  to  the  ground  of  challenge  arising  from  the  dis- 
charge of  the  larger  part  of  the  jurors — more  than  the  usual 
number  still  remained  in  court — the  jurors  are  presumed  to  be 
equally  well  qualified.  The  prisoner  does  not  allege  that  he 
was  deprived  of  an  opportunity  to  select  twelve  men  who  were 
wholly  indifferent  between  himself  and  the  People,  good  and 
lawful  men.  The  act  was  within  the  proper  discretion  of  the 
recorder — none  of  these  grounds  of  challenges  were  sufficient. 

2.  It  was  also  said  by  the  learned  counsel  for  the  prisoner 
that  no  venire  had  issued.  This  was  not  made  a  ground  of  chal- 
lenge to  the  array,  but  it  is  urged  because  it  is  not  stated  in 
the  record  of  conviction  that  such  a  precept  was  issued  and  re- 
turned. 

The  want  of  a  venire,  it  is  true,  has  been  formerly  held  fatal 
to  a  conviction  on  a  motion  in  arrest  of  judgment  (18  Johns., 
212,  The  People  v.  McKay ;  16  Johns.,  146,  Cooper  v.  Bissell). 

The  same  doctrine  was  sustained  in  the  case  of  People  v.  Mc- 
Guire  (2  Park.  Or.,  148),  on  writ  of  error  and  the  allegation  of 
diminution.  The  venire  was  also  necessary  at  common  law 
(Chitt.  Cr.  L.,  585).  The  venire  has,  however,  been  expressly 
abolished  in  civil  case's,  and  the  manner  of  summoning  jurors  in 
criminal  cases  is  the  same  as  that  prescribed  by  law  in  civil 
cases  (I  Rev.  Stat.,  411,  414,  and  734,  §  2). 

The  statute,  as  to  drawing  and  empanneling  jurors,  is  direc- 
tory to  the  clerk,  and  a  neglect  to  conform  to  its  provisions  will 
not,  per  se,  be  a  sufficient  ground  for  setting  aside  the  verdict, 
where  the  court  see  that  the  prisoner  has  not  been  prejudiced 
(Wakeraan  v.  Sprague,  7  Cow.,  164;  People  v.  Ransom,  7 
Wend,.  427). 

In  the  case  of  the  People  v.  Ransom,  SUTHERLAND,  J.,  says5 
after  referring  to  the  cases  of  Cooper  v.  Bissell,  and  The  Peo- 
ple v.  McKay  (supra),  "  The  error  complained  of  appears  on 
the  face  of  the  record ;  and  when  that  is  the  case  it  is  always 
fatal."  If  no  injustice  has  been  done,  the  court  will  not  inter- 


198  ABBOTTS'  PKACTICE  REPORTS. 

The  People  v.  Ferris. 

fere,  even  on  motion  (12  East,  229,  231,  see  note,  King  v.  Hurst, 
4  B.  <&  Aid..  430). 

BEST,  J.,  says,  in  the  latter  case.  "The  rule  is  this; — if  the 
officer  has  not  done  his  duty  he  is  to  be  punished  for  it ;  and 
if  his  omission  has  actually  produced  prejudice  to  the  party, 
then  it  is  in  the  discretion  of  the  court  to  prevent  injustice 
being  done  by  granting  a  new  trial ;  the  omission  is  not  shown 
to  have  been  prejudicial  to  the  defendant;" — and  the  new  trial 
was  refused. 

The  provision  of  the  Revised  Statutes,  requiring  the  district 
attorney  to  issue  a  precept  (2  Hev.  Stat.,  206,  §§  37-38),  is 
directory,  and  the  omission  of  it  has  no  relation  to  the  rights 
of  the  prisoner.  Although  this  precept  is  to  be  directed  to 
the  sheriff,  and  is  required  to  command  the  sheriff,  among 
other  things,  to  summon  the  grand  and  petit  jurors  who  have 
been  drawn  (sec.  38),  it  is  not  strictly  a  venire,  nor  is  it  the 
authority  by  which  the  sheriff  summons  the  jurors.  The 
authority  of  the  sheriff  for  this  purpose,  and  the  proceedings  to 
be  taken,  are  provided  by  the  Revised  Statutes  (414).  The 
jurors  are  to  be  drawn  by  the  clerk ;  a  certified  list  of  the 
names  is  to  be  delivered  to  the  sheriff,  and  he  is  required  to 
summon  those  named  in  the  list,  and  make  his  return  thereon 
to  the  court. 

This  appears  to  supersede  and  in  effect  abolishes  the  venire. 
This  subject  is  well  examined  in  the  cases  of  John  Cummings 
(3  Park.  Or.,  343),  and  Francis  McCann  (Id.,  298);  and  al- 
though the  latter  case  was  afterwards  reversed  in  the  Court 
of  Appeals,  it  was  upon  an  entirely  different  question  (16  N.  Y., 
58).  The  objection  before  us  relates,  also,  only  to  the  form, 
of  the  record  of  judgment,  and  is  not  raised  by  any  exception, 
motion  or  objection,  prior  to  the  bringing  of  this  writ  of  error ; 
we  are  required  to  assume  that  there  was  no  precept  or  venire, 
because  none  appears  on  the  record.  "Were  this  objection  to 
prevail,  it  would  be  in  disregard  of  the  provisions  of  the  Re- 
vised Statutes,  declaring  that  no  trial,  judgment  or  other  pro- 
ceedings on  an  indictment  shall  be  affected  by  reason  of  any 
defect  or  imperfection  in  matters  of  form,  which  shall  not  tend 
to  the  prejudice  of  the  defendants  (2  Rev.  Stat.,  287,  §  52). 

The  jurors  in  this  case  were  an  extra  panel,  who  are  drawn 
and  summoned  in  the  city  and  county  of  New  York  under  a 
statute  specially  applicable  to  that  city,  and  are  in  the  place 


NEW  SERIES ;  YOL.  L  199 

The  People  v.  Ferris. 

of  talesmen  authorized  in  other  counties  of  the  State  (Davies* 
Laws,  942,  §  4).  All  jurors  in  the  courts  of  record  for  the 
different  courts  of  the  said  city,  civil  and  criminal,  are  drawn  and 
summoned  in  the  manner  provided  in  that  act,  including  regu- 
lar as  well  as  extra  panels.  In  view  of  these  considerations, 
the  case  here  is  very  different  from  that  of  McGnire  (2  Park. 
Cr.,  148),  referred  to  above,  and  we  are  not  now  called  upon 
to  dissent  from  the  authority  of  that  case. 
The  objection  in  respect  to  the.  venire  is  not  well  taken. 

3.  The  answer  to  the  objection  raised  by  the  special  plea  of 
the  prisoner,  that  there  is  a  former  indictment  against  him  for 
the  same  offence,  upon  which  he  was  arraigned,  and  pleaded 
not  guilty,  and  a  commencement  was  made  towards  a  trial  by 
calling  the  name  of  one  juror,  which  trial  was  then  suspended 
against  the  consent  of  the  prisoner,  is  that  he  was  never  put  in 
jeopardy  unjier  the  former  indictment.      It  was  still  in  the 
discretion  of  the  court  to  postpone  the  trial,  as  if  it  had  not 
been  commenced  at   all.     There  was  no  trial,  conviction  or 
acquittal — nothing  that  can  be  pleaded  as  a  bar.     Counsel  for 
the  prisoner  has  cited  no  authority  to  maintain  his  special  plea, 
and  I  think  none  can  be  found. 

4.  The  rule  laid  down  by  the  Recorder,  in  his  charge,  upon 
the  subject  of  insanity,  is  precisely  that  to  be  found  in  the 
authorities   (People  v.   Freeman,   4   Den.,   9 ;   2  Green.  EV., 
§  373.      Vide  Opinion  of  Ch.  Justice  SHAW  in  the  case  of 
Abner  Rodgera,  to  be  found  in  the  note,  section  373). 

5.  The  act  of  1862  (Laws  of  1862,  p.  19),  affords  an  answer  to 
the  objection  that  the  trial  was  had  after  the  close  of  the  third 
week  of  the  term.     ~No  objection  was  raised  at  the  trial  on 
this  ground  ;  and  it  has  been  raised  here  solely  on  the  ground 
that  no  order  for  the  continuance  of  the  term  appears  on  the 
record  of  judgment.     The  omission  to  incorporate  it  in  the 
record  does  not  show  that  the  order  was  not  duly  entered  on  the 
minutes  of  the  court.     Every  intendment  is  in  favor  of  the  reg- 
ularity of  the  proceedings.     It  is  not  necessary  to  be  included 
in  the  record. 

The  judgment  should  be  affirmed. 

INGRAHAM,  P.  J. — I  think  there  can  be  no  doubt  but  that 
most  of  the  regularities  relied  upon  by  the  prisoner,  as  grounds 
for  challenging  the  array,  can  only  be  considered  as  matters  for 


200  ABBOTTS'  PRACTICE  REPORTS. 

The  People  ex  rel.  Livingston  v.  Taylor. 

which  the  officer  neglecting  the  performance  may  be  punished, 
but  not  as  being  available  to  the  prisoner,  unless  he  can  show 
some  prejudice  to  himself,  arising  therefrom. 

And  I  concur  in  the  views  expressed  by  Judge  LEONARD  in 
reference  thereto. 

That  the  conduct  of  the  officer  who  drew  the  petit  jury  waa 
wrong,  and  deserving  of  censure,  at  least,  if  not  of  punishment, 
must  be  conceded ;  but  where  the  irregularities  produce  no  harm 
to  the  prisoner,  and  do  not  appear  on  the  record,  they  afford  no 
ground  for  a  new  trial. 

The  greatest  difficulty  arises  from  the  provisions  of  the  statute,, 
which  says,  that  when  the  officers  appear,  and  not  otherwise,  the 
clerk  shall  proceed  to  draw,  etc.,  giving  no  power  to  the  clerk 
to  draw  at  any  other  time.  With  such  an  express  provision,  de- 
nying any  right  on  the  part  of  the  clerk  to  proceed  in  the 
absence  of  the  other  officers,  it  may  be  a  matter  of  doubt 
whether  the  provision  is  not  to  be  considered  more  than  direc- 
tory. 

A  very  slight  degree  of  evidence  to  show  that  the  prisoner 
might  have  been  injured  or  prejudiced  by  it,  would  undoubtedly 
entitle  the  prisoner  to  a  new  trial.  I  am  inclined,  however,  in 
the  absence  of  any  such  proof,  and  knowing  that  the  case  can  be 
heard  in  the  Court  of  Appeals,  at  the  next  term  of  the  court,  to 
concur  with  Judge  LEONARD  in  his  conclusions,  that  none  of  these 
irregularities  are  sufficient  to  call  for  a  new  trial. 


THE  PEOPLE,    on   relation   of   LIVINGSTON,    against 

TAYLOR. 

Supreme  Court,  first  District;  General  Term,  November,  1865. 
JUDICIAL  ACT. — MANDAMUS. — COMMISSIONER  OF  JURORS. 

A  mandamus  will  lie  to  the  commissioner  of  jurors,  to  compel  him  to  strike 
off  from  the  list  of  jurors  the  name  of  a  person  who  is  entitled,  under  the 
statute,  to  have  his  name  stricken  off. 


NEW  SERIES ;  VOL.  I.  201 

The  People  ex  rel.  Livingston  v.  Taylor. 

The  act  of  the  commissioner  of  jurors,  in  determining  upon  the  sufficiency 
of  the  excuse  relied  on  by  such  an  applicant,  is  not  a  judicial  act  within 
the  rule  relating  to  mandamus.  The  statute  dearly  defining  his  duty, 
he  has  no  discretion  to  exercise,  when  the  truth"  of  the  facts  relied  on  is 
clearly  shown  to  him. 

Mandamus  is. not  to  be  denied  merely  because  the  relator  may  have  a 
remedy  by  action  for  damages. 

Appeal  from  an  order. 

Robert  J.  Livingston,  the  relator,  applied  to  the  defendant 
Douglas  Taylor,  the  commissioner  of  jurors  for  the  city  and 
county  of  New  York,  to  have  his  name  struck  off  from  the 
list  of  jurors  for  1864,  upon  the  ground  that  he  was  a  non-resi- 
dent The  defendant  having  refused  to  do  so,  the  relator 
applied  at  special  term  for  a  mandamus  commanding  the  de- 
fendant to  strike  the  name  of  the  relator  from  the  list. 

The  writ  was  granted  by  default,  but  subsequently  the  default 
was  opened,  and  the  judge  decided  that  he  had  no  power  to 
issue  the  writ  in  such  a  case.  The  relator  now  appealed. 

Lewis  L.  Delafield,  for  the  appellant. — I.  Proceedings  in 
mandamus  cases  are  to  be  reviewed  by  appeal,  and  not  by 
writ  of  error  (The  People,  &c.  v.  Church,  20  jy.  T.  .#.,  529  ; 
People,  &c.  v.  Albright,  14  Abb.  PA,  305  ;  Laws  1854,  p.  592. 

II.  The  order  is  appealable.     It  was  based  solely  upon  the 
idea  that  the  court  has  no  right  to  direct  the  commissioner 
to  strike  off  the  relator's  name,  as  directed  by  the  writ.     It 
has  been  repeatedly  held  that  when  a  court  refuses  to  exercise 
a  discretion  vested  in  it  by  law,  under  the  impression  that  it 
does  not  possess  the  power  which  it  is  called  upon  to  exercise, 
and  in  consequence  an  erroneous  decision  is  obtained,  such 
decision  will  be  reversed  on  appeal  (Beach  v.  Chamberlain,  3 
Wend.,  366  ;  McElwain  v.  Corning,  12  Abb.  Pr.,  16  ;  McMahon 

v.  Mutual,  &c.  Ins.  Co.,  12  Id.,  28  ;  Artisans'  Bank  v.  Tread- 
well,  34  Barb.,  553). 

III.  The  only  question  is,  has  the  court  the  power  to  compel 
the  commissioner  to  strike  a  name  from  his  list  which  he  has 
erroneously  placed  there  ?     Has  it  any  control  over  him  ;  or  is 
he,  as  the  opinion  of  the  judge  below  would  indicate,  the  only 
officer  known  to  our  law,  who  is  beyond  the  reach  of  the  law  ? 

The  relator  presses  the  following  views  upon  the  court  with 
the  greatest  earnestness,  because  if  any  other  views  should 


202  ABBOTTS'  PEACTICE  REPORTS. 

The  People  ex  rel.  Livingston  v.  Taylor. 

prevail,  the  commissioner  would  be  clothed  with  arbitrary 
power,  and  could  put  any  person  of  any  age  or  sex  upon  his 
list,  and  there  would  be  no  adequate  redress. 

There  can  be  no  question  as  to  the  duty  of  the  commissioner 
to  strike  off  of  his  list  the  name  of  an  exempt  at  any  time.  It 
is  his  duty  to  make  and  "  correct "  the  list.  The  statute  pro- 
vides that  "  the  names  of  all  persons  found  to  be  exempt  from 
serving  as  jurors  shall  be  struck  from  the  list,  and  the  ground 
of  exemption  recorded"  (3  Rev.  Stat.,  §  698,  §  20). 

IV.  The  commissioner  of  jurors  is  a  ministerial  officer,  and 
in  no  sense  a  judicial  officer. 

The  court  still  has  all  the  power  that  it  ever  had  over  jurors, 
but  it  is  relieved  from  the  routine  business  of  attending  the 
preparation  of  the  jury  list  and  summoning  of  jurors. 

The  commissioner  in  the  city  of  New  York  is  substituted  for 
town  officers  in  other  parts  of  the  State,  and  it  cannot  be  claimed 
that  they  are  judicial  officers  (3  Rev.  /Sfotf.,'695,  §§  4,  5). 

That  he  is. a  ministerial  officer  is  apparent  from  the  provisions 
of  the  statute. 

(a.)  He  is  appointed  by  the  judges,  just  as  they  appoint  clerks 
and  criers  (3  Rev.  Stat.,  697,  §§  15  to  19). 

The  .commissioner  appears  in  his  true  character  in  §  34, 
where  he  is  called  a  "  clerk  "  of  the  board  for  the  selection  of 
grand  jurors  (3  Rev.  Stat.,  701,  §  34). 

Neither  judges  nor  supervisors  could  appoint  a  judicial  officer 
without  violating  the  Constitution.  Judicial  powers  cannot  be 
delegated  (Entick  v.  Carrington,  19  How.  St.  Tr.,  1063). 

(b.)  The  statute  reads :  "  The  said  jurors  shall  be  selected  "  by 
the  commissioner  (3  Rev.  Stat.,  697,  §  15).  The  word  "said"  is 
explained  by  §  14,  as  "  all  persons  residing  in  said  city,  who 
shall  be  qualified  to  serve  as  jurors."  These  qualifications  are 
fixed  ly  law  (3  Rev.  Stat.,  695,  §  5,  and  697,  §  14). 

All  the  commissioner  has  to  do  is  "  to  select "  certain  desig- 
nated persons ;  he  has  no  discretion  in  this  (§§  15-20). 

After  this  selection  he  must  give  notice  that  the  jury  list  is 
ready  for  correction,  and  must  strike  from  it  the  names  of 
exempts  (3  Rev.  Stat.,  698,  §§  20). 

He  has  no  discretion  to  determine  who  are  exempt :  that  is 
fixed  l>y  law. 

But  if  exempts  do  not  apply  to  be  excused,  they  cannot  be 


NEW  SERIES  ;  YOL.   I.  203 

The  People  ex  rel.  Livingston  v.  Taylor. 

held  for  duty ;  and  the  court  always  discharges  them  when  sum- 
moned. 

It  would  be  ground  for  challenge  to  the  array,  if  an  unquali- 
fied person,  ex  gr.  a  non-resident,  were  upon  the  jury  (3  Blacksl. 
Com.,  351-359). 

(c.)  The  commissioner  cannot  fine  jurors  for  non-attendance : 
the  court  must  do  this  (3  Rev.  Stat.,  698,  §  21).  And  the  court 
may,  as  it  constantly  does,  excuse  jurors  from  serving,  without 
consulting  the  commissioner.  And  the  court  may  remit  the  fine 
for  any  reason  that  it  thinks  fit,  as  it  constantly  does.  The 
commissioner  may  also  remit  the  fine  ;  but  he  can  only  do  this 
upon  "  legal  excuse "  fixed  by  law  (3  Rev.  Stat.,  698,  §  22). 
That  the  courts  have  the  right  to  excuse  from  duty  and  to  remit 
fines,  as  is  their  practice,  is  apparent  from  §  25,  which  provides 
that  defaulting  jurors  must  be  excused  by  the  court,  unless  this 
power  is  specially  delegated  to  the  commissioner  by  order  of 
the  court ;  and  from  §  21,  which  provides  that  -the  court  must 
ascertain  whether  the  jurors  have  been  duly  summoned,  before 
it  can  fine  them. 

(d.)  The  conclusion  of  the  matter  is,  that  the  commissioner, 
like  other  officers  of  the  court,  is  under  the  direction  and  control 
of  the  court,  and  holds  office  to  relieve  it  of  burdensome  minis- 
terial duty,  and  has  no  general  discretion,  and  can  only  exercise 
certain  powers  clearly  defined  and  fixed  by  statute  ;  and  that 
other  powers  of  a  much  higher  grade  connected  with  the  jury 
system,  were  never  intrusted  to  the  commissioner,  and  may  be 
exercised  by  the  court  at  its  discretion. 

(g.)  The  duty  of  a  clerk  in  "  approving  "  an  official  bond  is 
ministerial,  and  may  be  enforced  by  a  mandamus  (Gulick  v. 
New,  14  Ind.,  93).  The  register  may  be  compelled  by  manda- 
mus to  satisfy  a  mortgage  (The  People,  &c.  -y.  Miner,  37  Burl)., 
466).  And  both  of  these  acts  require  an  exercise  of  judgment 
and  discretion,  not  necessary  in  selecting  jurors  pointed  out  by  law. 

Y.  But  granting  (for  the  argument  only)  that  the  commis- 
sioner is  a  judicial  officer,  it  clearly  appears  from  the  statute 
(see  last  point)  that  he  has  no  general  discretion  ;  but  that  his 
conduct  is  governed  by  fixed  principles  and  rules,  from  which 
he  cannot  depart.  The  qualifications  of  jurors  are  fixed  bylaw. 
All  the  commissioner  has  to  do,  is  to  select  the  designated  per- 
sons. It  is  well  established  that  the  discretion  with  which 
courts  will  not  interfere  is  such  as  is  general,  and  not  regulated 


204:  ABBOTTS'  PRACTICE  REPORTS. 

The  People  ex  rel  Livingston  v.  Taylor. 

by  fixed  principles,  and  that  whenever  the  discretion  is  fixed  by 
law,  the  courts  will  control  that  discretion  by  mandamus  (The 
People  v.  Superior  Court,  5  Wend.,  114 ;  and  Ibid.,  10  Wend., 
285  ;  Hull  v.  Supervisors  of  Oneida  Co.,  19  Johns.,  259).  The 
law  is  thoroughly  discussed  in  Manor  v.  McCall  (5  Geo.,  522). 

YI.  The  statutes  relating  to  the  commissioner  nowhere  pro- 
vide in  terms  that  he  shall  not  be  subject  to  the  control  of  the 
Supreme  Court.  And  without  such  express  enactment  he  is  sub- 
ject to  it.  "  The  authorities  cited  show  that  the  right  to  review 
cannot  be  taken  away  without  an  unequivocal  declaration  to  that 
effect  by  the  legislature.  They  show  that  the  superior  courts 
in  England  and  in  this  State  have  disregarded  the  strongest  in- 
timations of  the  legislative  will,  unless  they  came  up  to  this 
standard ;  and  the  law  may  be  considered  as  settled,  that  lan- 
guage as  emphatic  as  that  contained  in  this  statute  will  not  de- 
prive a  party  of  the  right  of  review.  In  justification  of  this 
strictness,  it  has  been  alleged  that  administrative  and  judicial, 
or  quasi-judicial,  powers  are  frequently  delegated  to  men  with- 
out legal  experience,  who  may  err  through  ignorance,  or  abuse 
their  trust  from  interested  motives.  It  has,  therefore,  been 
deemed  indispensable  to  the  security  of  the  citizen  that  a  super- 
intending power  should  exist  somewhere,  over  inferior  courts 
and  officers,  Jo  restrain  irregularities,  and  to  correct  errors  of 
law,  and,  above  all,  errors  of  jurisdiction  "  (Per  GARDINER,  J., 
delivering  the  opinion  of  the  Court  of  Appeals  in  Matter  of 
Canal,  &c.  Street,  12  N.  T.,  411,  412 ;  see,  also,  point  Y.  of  K 
Hill,  Id.,  407). 

YII.  The  order  setting  aside  the  mandamus  should  be  vacated, 
and  the  defendant  declared  to  be  in  contempt  for  not  obeying 
the  same. 

BY  THE  COURT.* — INGRAHAM,  P.  J. — "We  are  not  furnished 
with  the  evidence  on  which  the  relator  applied  to  the  commis- 
sioner of  jurors  to  have  his  name  stricken  from  the  list  of 
jurors,  and  therefore  we  cannot  decide  whether  he  was  entitled 
thereto,  and  the  only  question  before  us  on  this  appeal  is 
whether  a  mandamus  will  lie  to  the  commissioner  of  jurors  for 
such  a  purpose,  if  it  be  conceded  that  the  relator  is  entitled  to 
the  relief  he  asks. 

The  office  of  this  writ  is  twofold :  one  when  addressed  to 
*  Present,  INGBAHAM,  P.  J.,  and  LEONARD  and  BARNAKD,  JJ. 


NEW  SEEIES;  VOL.  I.  205 

The  People  ex  rel.  Livingston  v.  Taylor. 

courts  of  inferior  jurisdiction,  and  to  judicial  officers,  and  to 
officers  exercising  judicial  powers,  to  compel  them  to  act  'and  to 
decide  on  matters  before  them ;  the  other  when  addressed  to 
ministerial  officers,  to  do  the  act  which  they  are  charged  with 
unlawfully  refusing  to  do.  The  commissioner  of  jurors  is  not 
a  judicial,  but  a  ministerial  officer.  It  is  true  he  has  to  decide 
on  the  sufficiency  of  the  excuse  offered  by  a  juror  to  have  his 
name  stricken  from  the  list  of  jurors,  but  still  the  nature  of  that 
excuse,  and  the  duty  of  the  officer,  is  clearly  defined  by  the 
statute,  and  when  the  truth  of  the  facts  relied  on  is  shown  to 
him,  he  has  no  discretion  to  exercise,  and  has  no  right  to  keep 
the  name  of  the  juror  on  the  list.  If  the  statute  vested  any  dis- 
cretion in  the  officer,  the  rule  is  different.  In  the  language  of 
EMOTT,  J.,  in  The  People  v.  The  Contracting  Board  (27  N<  Y., 
378),  there  must  be  a  clear  legal  right  not  merely  to  a  decision, 
but  to  the  thing  itself. 

There  is,  also,  another  principle  applicable  to  this  writ — that  it 
issues  where  the  party  has  no  other  remedy.  There  ctmld  be  no 
other  remedy  to  the  relator  but  to  bring  a  certiorari  and  re  view  the 
proceedings  of  the  commissioner  in  that  form  of  proceeding.  That 
his  acts  are  subject  to  review  in  one  or  the  other  mode,  there  can 
be  no  doubt.  It  never  was  the  intent  of  the  law  to  leave  this 
officer  at  liberty  to  exercise  an  arbitrary  control  over  those  who 
are  to  form  the  list  of  jurors.  The  law  has  particularly  enumer- 
ated those  who  are  to  be  placed  upon  it,  and  he  is  bound  to 
comply  with  those  provisions.  The  objection  to  a  review  by 
certiorari  is,  that  it  would  bring  up  the  whole  record,  which  ho 
is  required  to  keep,  and  where  such  a  course  would  lead  to  great 
inconvenience,  the  courts  have  held  that  the  writ  of  mandamus 
might  be  resorted  to.  This  rule  is  stated  by  MITCHELL,  J.,  in 
Adriance  v.  The  Supervisors  (12  How.  Pr.,  226),  where  he  says, 
"  The  general  principle  may  be  stated,  that  where  a  specific 
duty  is  imposed  on  public  officers  by  statute,  and  they  do  not 
conform  to  the  statute,  and  the  omission  to  perform  affects  a 
particular  party  only,  and  not  the  whole  list,  a  mandamus  will 
issue." 

Nor  is  this  remedy  to  be  withheld  because  the  relator  might 
have  an  action  for  damages.  Judge  MITCHELL,  in  the  last  cited 
case,  says,  "  It  is  better  for  the  public  that  the  specific  remedy 
be  applied  to  removing  the  wrong  directly,  that  to  have  actions 
for  damages,  in  which  the  officer  may  be  punished,  although  he 


206 ABBOTTS'  PBACTICE  EEPOETS. 

Greer  v.  The  Mayor,  &c.  of  New  York. 

erred  only  in  judgment."  So,  in  The  People  v.  The  Mayor,  &c. 
(10  Wend.,  393),  it  is  said  that  where  a  specific  duty  was  im- 
posed by  statute  on  a  public  officer  he  may  be  compelled  to  ex- 
ecute it  by  mandamus,  although  an  action  for  damages  might 
also  lie.  In  the  case  of  The  People  v.  Miner  (37  Barb.,  466), 
the  writ  issued  to  the  register  to  compel  the  satisfaction  of  a 
mortgage,  although  in  that  case  he  had  to  decide  upon  the 
sufficiency  of  the  satisfaction  piece,  and  SELDEIST,  J.,  in  The  Peo- 
ple v.  The  Contracting  Board  (supra),  says :  "  There  are  many 
questions  requiring  the  decision  of  ministerial  officers  which  in- 
volve, to  some  extent,  the  exercise  of  legal  discrimination  in 
their  solution,  but  which  are  not  regarded  as  judicial  questions, 
and  consequently  the  decision  of  them  is  not  conclusive  in  col- 
lateral proceedings." 

My  conclusion  is  that  the  writ  may  issue  to  this  officer. 

The  list  in  which  the  relator's  name  is  inserted  has  ceased  to 
be  of  any  importance,  as  the  period  of  time  for  which  it  was  to 
be  in  force  has  expired.  There  is  no  propriety  therefore  now  in 
issuing  the  mandamus,  and  nothing  can  be  done  except  to  re- 
verse the  order  of  the  special  term  as  to  the  power  of  issuing 
this  writ  in  this  case. 

Order  reversed. 


GREEK  against  THE  MAYOE,  &c.,  OF  NEW  YORK. 
New  York  Superior  Court ;  Special  Term,  April,  1866. 

MEASURE  OF   DAMAGES. — NEW    TRIAL. — MISTAKE. — LACHES. — 
OFFICER  OF  MUNICIPAL  CORPORATION. 

In  an  action  by  the  tenant  for  life,  for  damages  to  the  estate,  it  is  error  to 
estimate  the  value  of  his  estate  by  the  present  value  of  the  rents  and 
profits  multiplied  by  the  number  of  years  probable  duration  of  his  life, 
without  any  deduction  for  annual  charges,  or  rebate  of  interest  for  the 
time  allowed. 

A  verdict  assessed  upon  such  a  method  of  computation  may  be  set  aside  on 
the  ground  of  mistake,  inadvertence,  or  excusable  neglect,  even  after  a 
motion  for  a  new  trial  has  been  denied,  and  judgment  has  been  entered. 


NEW  SERIES;  VOL.   I.  207 

Greer  v.  The  Mayor,  &c.  of  New  York. 

The  criterion  of  what  is  excuse  for  laches  in  practice,  which  is  applicable  to 
individuals  generally,  is  not  to  be  strictly  applied  to  the  law  officer  of  a 
municipal  corporation,  to  the  prejudice  of  the  rights  of  the  public  whose 
officer  he  is.  In  a  clear  case  of  excusable  negligence  and  palpable  error, 
the  court  may  grant  relief  on  terms,  even  after  a  delay  which  might  bar 
the  application  of  an  ordinary  suitor. 

Motion  to  open  a  judgment. 

The  facts  are  fully  stated  in  the  opinion. 

Richard  0*  Gorman,  counsel  to  the  corporation,  for  the  mo- 
tion. 

C.  F.  Sandford  and  L.  B.  Woodruff,  opposed. 

MONELL,  J. — Two  actions  were  brought  against  the  corpora- 
tion of  the  city  of  New  York  to  recover  damages  for  injury  to 
the  building  on  the  southeast  corner  of  Broadway  and  Twenty- 
ninth  street,  known  as  No.  1,192  Broadway.  In  July,  1863,  a 
mob  of  rioters  attacked  the  building,  set  it  on  fire,  and  it  was 
totally  destroyed.  One  of  such  actions  was  brought  by  the 
plaintiff  to  recover  for  injury  to  his  estate  in  the  premises  as 
tenant  by  the  curtesy  initiate,  and  the  other  of  such  actions 
was  brought  by  Ann  Greer,  the  wife  of  the  plaintiff,  to  recover 
for  injury  to  her  estate  as  owner  of  the  fee.  The  plaintiff's 
action  was  tried  by  a  justice  of  this  court  and  a  jury,  and  re- 
sulted in  an  assessment  of  the  injury  to  the  plaintiff's  estate  at 
twenty  thousand  five  hundred  and  twenty  dollars,  for  which  sum, 
with  interest,  he  obtained  a  verdict.  A  motion  was  made  upon 
the  justice's  minutes  for  a  new  trial,  which  was  denied.  Judg- 
ment was  'thereupon  entered,  and  the  defendants  appealed 
to  the  general  term  of  this  court  from  -both  the  judgment  and 
order. 

The  case  made  by  the  defendants,  for  the  purpose  of  present- 
ing the  questions  of  fact  or  law,  to  be  reviewed  by  the  general 
term,  contained  no  part  of  the  evidence  given  on  the  trial,  and 
only  a  single  exception,  namely,  to  the  allowance  of  interest. 
Certain  facts  were  said  to  have  been  established,  namely,  the 
nature  of  the  plaintiff's  estate ;  the  destruction  of  the  buildings, 
and  the  value  in  money  of  the  injury  to  the  plaintiff's  life 
estate ;  but  no  evidence  was  furnished  to  the  court  to  enable  it 
to  determine  whether  the  plaintiff's  damages  were  ascertained 
upon  correct  principles.  There  being  no  evidence  to  review, 


208  ABBOTTS'  PEACTICE  EEPOETS. 

Greer  v.  The  Mayor,  &c.  of  New  York. 

and  the  only  exceptions  taken  being  considered  wholly  unten- 
able, the  court  affirmed  the  judgment  and  order. 

The  action  brought  by  Ann  Greer  was  subsequently  tried  by 
another  justice  of  this  court  without  a  jury.  Proof  was  adduced 
which  established  the  whole  value  of  the  property  destroyed  at 
and  not  exceeding  thirty-seven  thousand  four  hundred  dollars.  The 
age^of  George  Greer,  her  husband,  was  ascertained  to  be  sixty- 
nine.  The  justice  thereupon  computed  the  value  of  his  life 
estate  upon  the  principle  applicable  to  life  annuities,  and  de- 
ducted such  value  from  the  gross  value  of  the  property  destroyed, 
and  gave  judgment  in  favor  of  Ann  Greer  for  the  remainder. 
In  ascertaining  the  value  of  the  life  estate  the  justice  computed 
the  interest  upon  the  whole  value  (i.  e.,  thirty-seven  thousand 
four  hundred  dollars)  at  six  per  cent.,  and  multiplied  the  in- 
terest by  the  number  of  years'  purchase  furnished  by  the 
Carlyle  annuity  tables.  Such  computation  was  made  pursuant 
to  the  directions  contained  in  the  eighty-fourth  rule  of  court, 
prescribing  the  mode  of  computation  in  such  cases.  The  value  of 
Ann  Greer's  estate,  as  the  owner  of  the  fee,  as  thus  established, 
was  twenty-three  thousand  seven  hundred  and  ninety-four  dol- 
lars. Taking,  however,  the  sum  of  twenty  thousand  five  hundred 
and  twenty  dollars,  recovered  by  George  Greer,  as  the  value  of 
his  life  estate,  and  the  sum  of  twenty-three  thousand  seven 
hundred  and  ninety-four  dollars  recovered  by  Ann  Greer,  as 
the  value  of  her  estate,  we  have  an  aggregate  of  forty-four 
thousand  three  hundred  and  fourteen  dollars,  or  six  thousand 
nine  hundred  and  fourteen  dollars  more  than  the  entire  and 
highest  proven  value  of  the  whole  property  destroyed. 

A  motion  was  now  made  to  set  aside,  vacate  or  open  the 
judgment  recovered  in  favor  of  George  Greer,  and  for  a  new 
trial ;  or  that  the  defendants  be  permitted  to  renew  their  mo- 
tion for  a  new  trial  upon  the  minutes  of  the  court,  and  for  a  re- 
settlement of  the  case  prepared  for  the  appeal,  by  inserting 
therein  the  evidence  given  on  the  trial,  and  for  a  re-argument 
thereof. 

Upon  this  motion  it  now  appears  that  considerable  evidence 
was  given  on  the  trial  of  the  George  Greer  suit,  which  was 
necessary  to  enable  the  jury  to  ascertain  the  value  of  his  life 
estate ;  and  it  further  appears  that  the  principle  adopted  for 
ascertaining  such  value  was  by  proof  of  the  present  value  of 
the  rents  and  profits  of  the  premises  for  one  year,  and  multiply- 


NEW  SERIES ;  YOL.  I.  209 

Greer  v.  The  Mayor,  &c.  of  New  York. 

ing  such  value  by  the  number  of  years,  which,  by  the  annuity 
tables,  would  be  the  probable  duration  of  the  plaintiff's  life. 
No  deduction  appears  to  have  been  made  for  taxes,  repairs,  or 
insurance,  the  two  former  of  which  are  chargeable  upon  the  life 
tenant ;  nor  was  there  any  reduction  or  rebate  of  interest  upon 
the  annual  rental  thus,  in  effect,  paid  in  advance  for  the  ensuii-g 
six  or  seven  years.  This  motion  is  now  made  upon  the  ground 
that,  through  mistake,  inadvertence,  error  or  otherwise,  the 
plaintiff  has  recovered  at  least  six  thousand  nine  hundred  and 
fourteen  dollars  more  than  upon  any  principle  properly  applica- 
ble to  the  facts  of  the  case  he  is  entitled  to  recover. 

I  do  not  entertain  a  doubt  that  the  plaintiff's  recovery  was 
too  large,  and  I  am  therefore  clearly  of  the  opinion  that  if  no 
well  settled  principle  of  law  or  of  the  practice  of  the  court  is 
violated,  the  defendants  ought  to  have  an  opportunity  to  correct 
the  error.  The  power  to  do  so  is  given  in  express  terms  by  the 
174th  section  of  the  Code,  which  provides  that  the  court  in  its 
discretion,  and  upon  such  terms  as  shall  be  just,  may  relieve  a 
party  from  a  judgment,  error  or  other  proceeding  taken  against 
him,  "  through  his  mistake,  inadvertence,  surprise  or  excusable 
neglect."  I  cannot  persuade  myself  that  the  mode  of  ascertain- 
ing the  damages  in  this  case  was  adopted  by  the  court  or 
assented  to  by  the  counsel  to  the  corporation,  upon  a  full  and 
careful  examination  of  the  question.  Indeed,  it  does  not  ap- 
pear that  any  question  as  to  the  correctness  of  the  rule  was 
raised  on  the  trial,  and  it  seems  to  have  been  tacitly  assumed 
that  it  was  the  correct  rule.  I  am,  therefore,  led  to  believe 
that  through  inadvertence,  or,  perhaps,  excusable  neglect  or  mis- 
take of  the  counsel  for  the  defendants,  the  case  was  allowed  to 
go  to  the  jury  upon  what  I  deem  to  have  been  a  clearly  errone- 
ous rule  of  damages. 

Under  such  circumstances  I  can  have  no  hesitation  in  opening 
the  case  for  a  re-investigation,  if  the  inadvertence  or  neglect  has 
been  excused.  Great  laches  in  seeking  relief  from  mistakes  are 
generally  a  complete  answer  to  a  motion  for  such  relief;  and 
courts  will  always,  and  very  properly,  scrutinize  closely  any  at- 
tempt to  avoid  consequences,  which  a  party  has  brought  upon 
himself  by  his  own  act ;  and  great  delay  in  applying  for  relief 
is  always  a  circumstance  of  suspicion,  and  will  incline  the  mind 
to  doubt  the  good  faith  of  the  application.  But  where  there  is 
no  reasonable  ground  to  question  the  integrity  of  the  applica- 
N.  S.— VOL.  L— 14. 


210  ABBOTTS'  PRACTICE  REPORTS. 

Greer  v.  The  Mayor,  &c.  of  New  York. 

tion,  and  wliere  no  principle  of  law  will  be  invaded  and  the 
neglect  is  excused,  there  should  be  no  reluctance  to  afford  relief. 
This  action  was  defended  by  the  counsel  to  the  corporation, 
who  is  the  law  officer  of  the  city.  The  answer  of  the  defend- 
ants put  in  issue  all  the  allegations  in  the  plaintiff's  complaint. 
The  action  was  tried  at  the  May  term  in  1865,  and  evidence  to 
establish  the  plaintiff's  cause  of  action  and  the  basis  upon 
which  the  jury  were  to  estimate  the  plaintiff's  damages,  given, 
and  the  jury  were  instructed  to  adopt  the  rule  of  damages 
claimed  by  the  plaintiff  and  assented  to  by  the  corporation 
counsel,  as  the  correct  rule.  The  case  on  the  appeal  was 
heard  in  the  succeeding  October  general  term  and  decided  at 
the  November  general  term.  The  incumbent  of  the  office  of 
the  counsel  to  the  corporation  during  these  proceedings  was 
succeeded  in  his  office  by  the  present  counsel  on  the  lirst  of 
January  last,  and  the  pending  suits  and  proceedings  against 
the  corporation  were  at  that  time  delivered  to  him.  It  does 
not  appear  that  the  error  now  complained  of  was  discovered 
by  the  late  corporation  counsel,  who  does  not  appear  to  have 
been  aware  that  any  doubts  could  be  entertained  of  the  cor- 
rectness of  the  rule  adopted  and  to  which  lie  yielded  on  the 
trial,  no  doubt  believing  it  to  be  the  correct  rule.  The  present 
corporation  counsel,  when  he  entered  upon  his  office,  found  a 
mass  of  unfinished  litigation,  which,  with  his  other  duties  con- 
stantly accumulating,  rendered  it  impossible  at  once  to  inves- 
tigate all  the  cases  in  his  office.  Yet  this  motion  is  made  in  a 

O 

little  over  two  months  from  his  assumption  of  office.  The 
counsel  to  the  corporation  is  an  independent  department  of 
the  corporate  government,  and  represents  the  inhabitants  of 
the  county.  He  has  charge  of  and  is  responsible  for  the  con- 
duct of  all  suits  and  proceedings  against  the  city.  To  him  are 
conffded  interests  of  great  magnitude  and  importance,  and  it 
is  his  duty,  independently  of  any  other  department,  to  defend 
the  city  and  the  taxable  inhabitants  thereof  against  all  actions 
which  in  his,  judgment  cannot-be  sustained  ;  and  it  is  also  his 
duty,  whenever  in  his  judgment  the  interests  of  the  city  and 
its  taxable  inhabitants  require  it,  to  institute  lawful  proceed- 
ings to  relieve  them  from  any  improper  burthen.  And  the 
duty  is  none  the  less  imperative  whether  the  burthen  has  been 
imposed  through  mistake  of  himself  or  of  his  predecessor  in 


NEW   SERIES;  VOL.   I.  211 

Greer  v.  The  Mayor,  &c.  of  New  York. 

office,  or  mistake  of  any  other  department  of  the  city  govern- 
ment. 

The  measure  of  neglect  which  is  applied  to  cases  against 
individuals  for  their  own  acts  or  neglect,  for  which  they  are 
themselves  responsible,  ought  not  to  be  applied  to  public 
functionaries  representing  parties  who  are  made  liable  for  acts 
or  omissions  of  which  they  are  ignorant.  The  principle  of 
the  maxim,  N"ullum  tempus  occurrit  regi,  in  a  modified  form, 
is  applicable  to  such  a  case,  namely,  that  the  community  or  its 
representatives  cannot  always  be  supposed  to  be  aware  of  an 
unjust  invasion  of  its  rights.  The  corporation  of  Ne\f  York 
has  no  entire  control  over  their  counsel,  he  being  an  elective 
officer,  so  as  to  direct  or  change  him ;  and  unless  the  courts 
can  afford  them  protection  or  relief,  when  brought  to  their 
notice,  serious  losses  might  fall  upon  the  city  treasury  by  the 
neglect  or  delinquency  of  an  irresponsible  official. 

The  several  adjudications  in  this  case,  which  it  was  so  strongly 
urged  should  be  regarded  as  concluding  the  corporation  upon. 
this  motion,  do  not  afford,  it  seems  to  me,  a  sufficient  reason 
for  withholding  the  relief  they  now  seek  to  obtain.  I  believe 
an  error  was  committed  on  the  trial  of  the  action  which  should 
not  go  unconnected,  if  the  court  have  power  to  correct  it.  And 
the  plaintiff  should  not  object,  as  I  believe  he  will  not,  to 
have  his  judgment  reduced,  if 'he  has  recovered  more  than  the 
law  awards  him. 

I  am,  therefore,  of  opinion  that  so  much  of  the  motion  as  is 
necessary  to  give  the  defendants  the  relief  they  seek  should 
be  granted  on  terms.  The  neglect  to  apply  at  an  earlier  day 
is  to  my  mind  sufficiently  excused,  and  the  defendants  should 
not  be  injuriously  prejudiced  by  the  delay  of  a  public  official, 
more  especially  as  the  plaintiff  cannot  be  injured,  except  by  a 
short  prolongation  of  his  action. 

I  do  not  intend,  and  I  mean  it  shall  be  so  understood,  that 
this  decision  shall  be  regarded  as  a  precedent  or  as  affording 
any  encouragement  to  relaxing  proper  attention  to  the  defence 
of  suits  against  the  corporation.  In  conducting  the  large  law 
business  devolving  upon  the  counsel  to  the  corporation  mis- 
takes and  errors  are  almost  inevitable,  and.  more  or  less  delay 
cannot,  probably,  be  avoided  ;  but  only  in  clear  cases  of  ex- 
cusable negligence  or  palpable  error  will  the  courts  feel  in- 
clined to  relieve  the  corporation  from  the  consequences  of  mis- 


212  ABBOTTS'  PRACTICE  REPORTS. 

Greer  v.  The  Mayor,  &c.  of  New  York. 

takes  of  the  city  officials.  I  have  come  to  the  conclusion,  with 
much  hesitation,  however,  that  the  order  denying  the  motion 
for  a  new  trial  and  the  order  affirming  the  same  should  be  set 
aside,  the  case  resettled  and  a  re-argument  ordered.  In  no 
other  way,  without  the  consent  of  the  plaintiff,  can  the  error 
complained  of  be  corrected.  An  order  may  be  entered  that 
unless  the  plaintiff,  within  twenty  days  from  the  entering  and 
service  of  the  order  upon  this  decision,  stipulates  in  writing 
to  deduct  from  his  judgment  the  sum  of  six  thousand  nine 
hundred  and  fourteen  dollars,  with  interest  from  September 
23,  1S&3,  then  that,  upon  payment  by  the  defendants  to  the 
plaintiff  of  all  the  costs  in  the  action  since  the  trial,  including 
the  costs  of  the  appeal  to  the  Court  of  Appeals,  to  be  taxed, 
and  of  ten  dollars  costs  of  opposing  this  motion,  the  defendants 
have  leave  to  re-settle  the  case  and  reargue  their  motion  for 
a  new  trial  at  the  special  term  ;  and  that  the  order  denying 
the  motion  for  a  new  trial  on  the  minutes  of  the  justice  and  of 
the  judgment  affirming  such  order  be  vacated  and  set  aside  ; 
and  that  until  the  decision  of  such  motion  all  proceedings  on 
the  judgment  be  stayed. 


NEW  SERIES;  VOL.  I.  213 

Hendricks  v.  Carpenter. 

^^#^  ' 

HENDRICKS  against  CARPENTER. 
York  Superior  Court ;  Special  Term,  January,  1864. 
OPENING  INQUEST. 

After  the  lapse  of  two  years  from  the  entry  of  judgment  upon  an  inquest,  and 
the  giving  notice  thereof  to  the  defendant,  the  parties  having  been  resident 
within  the  jurisdiction  of  the  court,  a  motion  to  open  the  inquest  will  not  be 
entertained. 

Motion  to  open  a  judgment. 

Sheffington  Sanxay,  for  the  motion. 
John  Pyne,  opposed. 

McCuNN,  J. — In  this  case  a  motion  was  made  to  open  an  in- 
quest and  set  aside  a  judgment  entered  at  trial  term. 

After  a  careful  inspection  of  the  entire  case,  and  after  exam- 
ining the  law,  I  find  that  it  is  quite  out  of  my  power  to  grant 
the  relief  claimed. 

The  action  was  for  a  money  demand  on  contract.  The  parties 
reside  within  the  jurisdiction  of  the  court,  and  are  fully  under  its 
control. 

This  being  so,  and  more  than  two  years  having  elapsed  since 
the  perfection,  entry  and  notice  of  the  judgment  upon  the  de- 
fendant's attorney,  the  174th  section  of  the  Code  steps  in  and 
precludes  me  from  interfering. 

Other  points  were  raised  in  the  case,  but,  as  this  is  the  princi 
pal  and  overshadowing  one,  I  refrain  from  saying  more  in  the 
premises. 

Motion  denied,  with  ten  dollars  costs. 


214  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 


THE  MADISON  AVENUE  BAPTIST  CHURCH   against 
THE  BAPTIST  CHURCH  IN  OLIVER  STREET. 

New  York  Superior  Court ;  General  Term,  January ',  1866. 

RELIGIOUS   CORPORATIONS. — PROCEEDINGS  FOR  SALE  AND  CON- 
VEYANCE OF  THEIR  REAL  ESTATE. — AMALGAMA- 
TION OF  CORPORATIONS. 

Religious  corporations  have  inherent  power  to  alien  their  property ;  and 

although  the  statute  requires  an  application  to  the  court  for  leave  to 

make  any  sale  of  their  real  property,  this  does  not  restrict  their  power  to 

the  making  of  sales  for  money.    The  court  may  sanction  a  conveyance  for 

any  proper  purpose. 
In  these  proceedings  the  better  practice  is  to  negotiate  and  agree  upon  the 

terms  of  the  sale  first,  and  then  lay  the  agreement  before  the  court  for  its 

sanction. 
The  application  may  be  made  by  the  .Trustees,  if  it  be  shown  that  amajority 

of  the  corporators  approve  it. 
Where  the  real  and  only  consideration  for  the  proposed  transfer  was  a  union 

between  two  societies,  the  terms  of  which  appeared  in  the  application  and 

order  • — Held,  that  this  was  a  sufficient  statement  of  the  application  of  the 

moneys. 
The  title  under  the  conveyance  is  not  affected  by  indefiniteness  of  the  order 

in  respect  to  the  application  of  the  proceeds. 
Their  application  may  be  directed  by  a  separate  order  from  that  authorizing 

the  sale. 
Two  religious  societies  may  unite  with  each  other,  and  a  conveyance  of  the 

property  of  one,  to  the  society  so  formed,  may  be  sanctioned  by  the  court, 

under  the  statute. 
The  case  of  Williamson  v.  Berry  (8  How.  S.  Ct.,  495)  disapproved. 

Appeal  from  a  judgment. 

This  action  was  to  recover  the  possession  of  a  plot  of  ground, 
on  the  southeasterly  corner  of  Madison  avenue  and  Thirty-first 
street  in  the  city  of  New  York. 

Prior  to  the  21st  of  October,  1862,  the  plaintifls,  a  religious 
corporation,  were  the  owners  of  the  plot  in  question,  and  had 
erected  thereon  a  church  edifice,  which  they  occupied  as  a  house 
of  worship. 

The  complaint  alleged  the  ownership  of  the  plaintiffs,  and 
the  entry  of  the  defendants.  The  answer,  after  denying  all 


NEW  SERIES ;  VOL.  I.  215 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

the  allegations  in  the  complaint  not  afterwards  admitted,  for 
a  further  and  separate  defence,  set  forth  certain  facts,  which 
will  sufficiently  appear  in  the  offers  of  evidence  made  on  the 
trial. 

The  action  was  tried  by  Mr.  Justice  McCtmN,  without  a  jury. 

On  the  trial,  the  plaintiffs  proved  a  deed  to  themselves  of  the 
lot  in  question,  dated  August  1st,  1859,  from  Catharine  Vander- 
pool,  and  the  possession  of  the  defendants. 

The  defendants  then  offered  in  evidence  a  petition,  resolutions, 
consents,  and  order  thereon,  annexed  to  and  forming  a  part  of 
their  answer. 

The  petition  was  addressed  to  "  The  Supreme  Court,"  and 
was  by  "The  Ti^ustees  of  the  Madison  Avenue  Baptist  Church" 
It  is  stated  that  the  Madison  Avenue  Baptist  Church  was  a  re- 
ligious incorporation,  and  the  owner  of  the  lot  on  the  southeast- 
erly corner  of  Madison  avenue  and  Thirty-first  street,  on  which 
they  had  erected  a  church  edifice  and  lecture-room,  at  a 
cost,  including  the  lot  and  an  organ,  of  the  sum  of  about  one 
hundred  and  twenty-two  thousand  dollars.  That  their  in- 
debtedness therefor  was  about  seventy-three  thousand  dollars, 
sixty-one  thousand  five  hundred  dollars  of  which  was  secured 
by  mortgages  upon  the  premises.  That  owing  to  causes  set 
forth  in  the  petition,  they  were  unable  to  pay  their  liabilities, 
or  meet  the  current  expenses  of  the  church.  That  the  said  Mad- 
ison Avenue  Baptist  Church,  and  the  Baptist  Church  in  Oliver 
street,  also  a  religious  incorporation,  and  located  in  Oliver  street 
in  this  city,  and  which  had  contemplated  disposing  of  its  prop- 
erty and  moving  up  town,  had  formed  a  plan  and  made  ar- 
rangements for  uniting  said  two  churches  into  one,  and  had 
agreed  upon  the  following  terms  for  such  union : — 

"First.  The  Madison  Avenue  Baptist  Church  is  to  convey 
"  and  transfer  all  its  real  and  personal  property  to  the  Oliver 
"  Street  Baptist  Church,  and  the  members  of  the  Madison 
"  Avenue  Baptist  Church,  are  to  become  and  be  members  of 
"  the  Oliver  Street  Baptist  Church ;  and  thereupon  the  regular 
"  services  of  the  united  churches  to  be  held  in  the  house  of  wor- 
"  ship  owned  by  the  Madison  Avenue  Baptist  Church. 

"  Second.  The  Trustees  of  the  Oliver  Street  Baptist  Church 
"  are  to  resign,  and  an  election  for  new  Trustees  ordered  by  the 
"  church  and  congregation  united.  The  resignation  of  the 


216      ABBOTTS'  PEACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

"  present  Trustees  to  take  effect  when  others  shall  have  been 
"  elected. 

"  Third.  The  Oliver  Street  Baptist  Church  are  then  to  take 
"  the  necessary  steps  to  cause  its  corporate  name  to  be  changed 
"  to  the  Madison  Avenue  Baptist  Church. 

"  Fourth. — The  real  and  personal  property  now  owned  by 
"  the  Madison  Avenue  Baptist  Church,  and  that  owned  by  the 
"  Oliver  Street  Baptist  Church,  upon  such  transfer  and  union 
"  as  aforesaid,  is  to  become  liable  for  the  indebtedness  of  both 
"  said  churches. 

"  Fifth. — As  soon  as  practicable  after  such  union  shall  have 
"  been  perfected,  and  new  Trustees  elected,  a  sale  of  the  pews 
"in  the  Madison  Avenue  Baptist  Church,  at  their  present  as- 
"  sessed  value,  is  to  be  ordered,  upon  the  same  terms  and  con- 
"  ditions  as  provided  by  the  form  of  deed  formerly  adopted  by 
"  the  Madison  Avenue  Baptist  Church  ;  at  which  sale,  the 
"present  owners  of  pews  heretofore  sold,  amounting  together 
"  to  thirty-one  thousand  dollars,  are  to  have  the  right  to  pur- 
"  chase  a  pew  or  pews  of  equal  value  to  those  heretofore  pur- 
"  chased  by  them,  without  further  payment  than  the  amount 
"  of  premium  which  may  be  bid  for  choice,  and  are  to  receive 
"  a  deed  for  the  same.  And  the  present  members  of  the 
"  Oliver  Street  Baptist  Church  or  congregation,  also,  are  to 
"  have  the  right  to  purchase  pews  to  the  amount  of  thirty-one 
"  thousand  dollars,  without  any  payment,  or  merely  a  nominal 
"  one,  except  the  amount  of  premium  that  may  be  bid  for 
"  choice  of  pews." 

The  petition  then  stated  that  the  plan  and  terms  for  forming 
a  union  of  the  two  churches  had  been  agreed  upon  by  a  joint 
committee  appointed  by  said  churches,  respectively ;  that  such 
committees  had  reported  to  their  respective  churches  the  plan, 
arrangement  and  terms  for  the  union  of  the  two  churches  ;  and 
that  at  a  public  meeting  of  the  church  and  congregation  of  the 
Madison  Avenue  Baptist  Church,  duly  called,  the  report  of 
their  committee  of  the  plan,  arrangement  and  terms  for  the 
union  of  the  two  churches,  "  was  adopted  and  approved,  and 
"  the  Trustees  of  the  Madison  Avenue  Baptist  Church  autho- 
"  rized  and  directed  to  petition  the  court  for  an  order  authoriz- 
"  ing  them  to  convey  the  property  of  the  Madison  Avenue 
"  Baptist  Church  to  said  Oliver  Street  Baptist  Church,  in  pur- 


NEW  SERIES;  YOL.  I.  217 


The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

"  suance  of  the  plan  and  arrangement  for  the  union  of  the  said 
"  two  churches  on  the  terms  above  stated." 

The  petition  further  stated,  that,  at  a  public  meeting  of  the 
Oliver  Street  Baptist  Church  and  congregation,  the  report  of 
their  committee  of  the  plan,  &c.,  of  the  union,  was  adopted  and 
approved,  and  the  Trustees  were  authorized  and  directed  to 
take  the  necessary  legal  steps  to  perfect  the  union  of  the  two 
churches ;  and  that,  subsequently,  the  Trustees  of  the  Oliver 
Street  Baptist  Church  had  adopted  a  resolution  pledging  them- 
selves to  carry  out  and  perfect  the  union  of  the  two  churches. 

The  petition  further  stated,  that  the  Oliver  Street  Baptist 
Church  owned  property,  over  and  above  all  their  in  deb  ted  ness, 
of  the  value  of  from  fifty  to  sixty-five  thousand  dollars,  which, 
on  the  consummation  of  the  union,  would  become  applicable 
to  the  payment  of  the  debts  and  liabilities  of  the  Madison 
Avenue  Baptist  Church.  That  a  portion  of  the  pew-holders  of  - 
said  church  had  consented  to  the  transfer  of  the  property,  and 
that  the  residue  of  said  pew-holders  had  approved  of,  and  were 
in  favor  of  forming  the  union. 

The  petition  then  prayed  for  an  order  authorizing  and 
directing  the  petitioners,  "  to  convey  "  the  said  premises  to  the 
Oliver  Street  Baptist  Church.  Annexed  to  the  petition  was 
an  authenticated  copy  of  the  proceedings  of  the  meeting  of 
the  congregation  of  the  Madison  Avenue  Baptist  Church, 
which  had  approved  of  the  plan  of  the  union ;  and  also  the 
consent  of  the  pew-owners  and  holders. 

Upon  such  petition,  the  court  made  an  order  authorizing  and 
directing  the  Trustees  of  the  Madison  Avenue  Baptist  Church, 
"  to  convey  "  by  a  proper  deed  of  Conveyance,  the  said  prem- 
ises to  the  Oliver  Street  Baptist  Church.  The  order  was 
afterwards  amendedj  by  changing  the  words  "  the  Oliver 
Street  Baptist  Church,"  to  "  the  Baptist  Church  in  Oliver 
Street." 

The  plaintiffs  objected  to  the  papers  offered  on  the  several 
grounds : 

1st.  As  immaterial.  2d.  That  it  appeared  on  the  face  of 
the  papers  that  the  proceeding  was  void.  3d.  That  it  did 
not  appear  that  it  was  authorized  by  a  majority  of  the  plain- 
tiffs' corporators.  4th.  That  it  was  a  petition  and  order  sim- 
ply to  convey.  5th.  That  it  purported  to  be  made  by  the 
trustees  and  not  by  the  corporators. 


218  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

The  defendants  then  offered  in  evidence  a  deed  dated 
October  21st,  1862,  from  the  Madison  Avenue  Baptist  Church, 
to  the  Baptist  Church  in  Oliver  Street,  conveying  to  the  latter 
the  premises  in  question,  for  the  expressed  consideration  of 
five  dollars. 

The  defendants  then  offered  to  show,  that  under  that  deed 
they  entered  upon  the  customary  religious  services  in  the 
church  edifice  conveyed  by  such  deed,  in  connection  with  the 
plaintiffs,  and  by  their  consent,  and  that  the  two  congregations 
united  in  such  services. 

The  defendants  further  offered  to  show  a  petition  and  order 
for  the  change  of  their  corporate  name  to  the  Madison  Ave- 
nue Baptist  Church,  in  pursuance  of  the  agreement  aforesaid. 
Also,  that  they  had  sold  their  church  property  in  Oliver 
street,  in  execution  of  the  agreement  for  the  union  of  the  two 
churches ;  and  that  all  the  conditions  and  terms  of  the  union,  as 
set  forth  in  the  petition,  had  been  fully  carried  out  and  per- 
formed by  the  parties  respectively. 

To  each  and  all  of  the  evidences  offered,  the  plaintiffs  objected. 
The  court  excluded  all  and  each  part  of  the  evidence  offered,  on 
the  ground  that  the  same  would  not  establish,  or  tend  to  estab- 
lish, a  defence.  To  which  rejection  of  such  evidence,  the  de- 
fendants excepted. 

In  the  view  taken  by  the  court,  it  is  not  necessary  to  state  the 
further  evidence  offered  on  the  part  of  the  defendants,  and  ex- 
cluded on  the  trial. 

The  justice  rendered  judgment  in  favor  of  the  plaintiffs,  that 
they  recover  possession  of  the  premises,  with  costs.  The  decis- 
ion is  reported  in  19  Abb.  Pr.  (0.  £),  105. 

From  the  judgment  the  defendants  now  appealed. 

L.  B.  Woodruff,  for  the  defendants,  appellants. 

J.  8.  Bosworth,  and  James  T.  Brady,  for  the  plaintifls,  re- 
spondents. 

BY  THE  COURT. — MONELL,  J. — The  common  law  right  of 
alienation,  as  well  as  the  power  conferred  by  the  Revised  Stat- 
utes (2  Rev.  Stat.,  556,  §  1,  sub.  4),  upon  corporations  generally, 
to.  convey  their  real  property,  is  restrained  in  its  application  to 
religious  corporations,  by  the  llth  section  of  the  act  providing 
for  their  incorporation  (2  R.  L.  [1813],  212).  Tlmt  section  pro- 


NEW  SERIES;  VOL.  I  219 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

vides,  that  upon  the  application  of  a  religious  corporation,  it 
shall  be  lawful  for  the  court  to  make  an  order  for  the  sale  of  any 
real  estate  of  such  corporation,  and  to  direct  the  application  of 
the  moneys  arising  therefrom.  Without  such  an  order,  any  sale 
made  by  a  religious  society  is  void  (Manning  v.  Moscow  Presby- 
terian Society,  27  Barb.,  52). 

The  objections  to  the  order  in  this  case  are  four-fold: 

First.  That  the  court  had  the  power  to  order  only  a  sale. 

Second.  That  the  application  for  the  order  was  made  by  the 
Trustees,  and  not  by  the  corporation. 

Third.  That  the  order  did  not  direct  the  application  of  the 
moneys  arising  from  the  sale ;  and 

Fourth.  That  the  transaction  produced  a  dissolution  and 
abandonment  of  the  plaintiffs'  corporation,  and  not  a  continuance 
of  it  for  the  purposes  of  its  organization. 

The  petition  of  the  Trustees  does  not  ask  for  an  order  to  sell, 
but  for  an  order  to  convey,  pursuant  to  an  agreement  pre- 
viously made  between  the  parties,  and  set  out  at  length  in  the 
petition. 

If  such  agreement  was  a  proper  one,  such  as  should  receive  the 
sanction  of  the  court,  and  would  conduce  to  the  temporal  and 
spiritual  welfare  of  the  corporation,  it  would  seem  to  be  of  not 
much  importance,  whether  the  application  was  in  the  one  or  the 
other  form. 

It  was  contended,  however,  that  as  the  court  can  make  an  or- 
der only  for  the  sale,  the  statute  giving  the  power  must  have  a 
literal  compliance. 

The  section  referred  to,  confers  no  power  upon  religious  cor- 
porations to  alien  its  property.  None  was  needed.  The  power 
is  inherent  in  every  corporation,  which,  at  common  law,  has 
an  unlimited  authority  over  its  property,  and  could  alienate 
the  same  in  fee  by  grant  or  otherwise  (Co.  Litt.,  44  a,  300  b ;  1 
Burr,  221).  And  a  like  power  is  given  by  the  Revised  Statutes, 
before  referred  to.  Neither  does  the  section  take  away  the  power 
of  alienation.  It  merely  limits  its  exercise,  by  requiring  the  cor- 
poration to  obtain  the  consent  of  the  court,  and  so  far,  only,  it  op- 
erates as  a  restraint  upon  its  alienating  powers. 

If  the  right  of  a  religious  corporation  to  sell  its  property 
was  derived  solely  from  the  statute,  and  the  power  was  limited 
in  terms  to  a  sale,  it  might  be,  that  a  literal  observance  would 
be  required.  But  where  the  corporation  has  the  power  to  sell, 


220  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

independently  of  any  statute,  upon  merely  obtaining  the  sanction 
of  the  court  to  the  sale,  a  substantial  compliance  with  the  spirit 
and  intent  of  the  section  referred  to,  should,  it  seems  to  me,  be 
deemed  sufficient. 

The  restraint  placed  upon  religious  corporations,  was  intended 
to  prevent  an  improper  alienation  of  their  property.  An  unlim- 
ited power  of  alienation  could  be  exercised  by  a  corporation  in- 
juriously to  the  temporal  interests  of  church  societies,  and  the 
cause  of  the  Christian  religion.  But  when  the  purposes  of  a  sale 
are  proper,  and  in  no  wise  opposed  by  the  policy  or  design  of 
the  statute,  no  court  would  be  justified,  in  my  opinion,  in  with- 
holding its  consent,  merely  because  the  corporation  had  applied 
for  permission  to  convey. 

It  .will  be  seen  that  the  section  referred  to,  authorizes  the 
court  to  make  an  order  for  the  "  sale,"  and  not  for  a  sale  and 
"  conveyance."  A  sale  without  a  conveyance  would  be  wholly 
ineffectual  to  pass  title  to  real  property  ;  and  the  use,  therefore, 
of  the  word  "  sale  "  only,  in  the  statute,  would  seem  to  indicate, 
that  it  was  intended  to  give  to  the  word  a  signification  suffi- 
ciently broad,  to  include  conveyance.  An  agreement  to  sell, 
always  implies  an  agreement  to  convey,  as  a  necessary  means 
of  transfer  to  complete  the  sale ;  and  an  agreement  to  convey, 
implies  a  sale  agreed  upon,  which  needs  only  a  conveyance  to 
consummate  it. 

The  plaintiffs  agreed  with  the  defendants,  "  to  convey  and 
transfer  "  all  their  property.  Such  a  contract,  independently  of 
any  restraining  statute,  would  be  sufficient  as  a  contract  of  sale ; 
and  under  the  statute,  as  a  contract,  its  specific  performance 
could  have  been  compelled,  by  requiring  the  plaintiffs  to  apply 
to  the  court  for  its  consent. 

In  the  case  of  Williamson  v.  Berry  (8  How.  S.  Ct.,  495),  to 
which  we  were  referred,  Mr.  Justice  WAYNE  gives  as  a  defini- 
tion of  the  word  "  sale,"  a  "  contract  to  give  and  pass  rights  of 
property  for  money"  and  he  held,  that  an  authority  given  to 
Clark  by  the  legislature,  u  to  sell  and  convey,"  did  not  authorize 
a  conveyance  in  payment  of  his  debts.  If  that  learned  justice 
intended  so  contracted  a  signification  to  the  word  as  he  expresses, 
it  would  render  void  all  transfers  of  property  not  founded  on  a 
money  consideration,  which  it  cannot  be  believed  he  designed. 
As  a  decision,  however,  it  is  wholly  unsatisfactory,  and  must  be 
considered  as  overruled  by  De  Ruyter  v.  St.  Peter's  Church,  3 


NEW  SERIES ;  VOL.  I.  221 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

-ZT.  Y.  [3  Comst.'],  238,  where  an  assignment  by  a  church  of  its 
property  for  the  payment  of  its  debts,  was  upheld. 

All  that  the  statute  requires  is,  that  the  sanction  of  the  court 
approving  the  sale  shall  be  procured.  But  to  enable  the  court 
to  form  a  judgment,  it  must  be  put  in  possession  of  all  the  facts 
which  furnish  the  reasons  for  the  sale.  In  the  case  of  The 
Dutch  Church  in  Garden  Street  v.  Mott  (7  Paige,  77),  the  late 
Chancellor  says :  "  As  the  law  of  patronage  has  never  been  ex- 
tended to  this  State,  and  was  inconsistent  with  the  spirit  of  our 
institutions,  it  became  necessary  to  vest  in  some  tribunal  the 
power  of  sanctioning  alienations  of  church  property,"  and, 
therefore,  the  intention  of  the  act  of  1816  (which  was  the  same 
as  the  act  of  1813)  was  to  give  to  religious  corporations  an  un- 
limited power  to  convey  any  real  property  held  by  them  in  trust 
for  the  corporators :  provided,  the  previous  consent  of  the  court 
to  such  alienation  was  obtained.  And  in  Matter  of  Reformed 
Dutch  Church  in  Saugerties  (16  Barb.,  237),  Judge  HARRIS  says : 
"  It  was  deemed  necessary  for  the  protection  of  those  who  are 
the  real  owners  of  such  •  property  to  require  the  sanction  of  that 
officer  before  the  corporation  could  make  a  valid  conveyance." 
But  the  chancellor  could  only  ratify  or  veto  the  sale. 

As  I  have  already  stated,  if  the  reasons  are  good  and  the  ob- 
ject proper,  it  is  of  small  importance  in  what  form  the  sanc- 
tion of  the  court  is  obtained ;  and  where  such  reasons,  and 
object,  and  the  purpose  to  which  the  considerations  for  the 
sale  is  proposed  to  be  applied,  are  fully  stated  in  the  petition, 
and  the  court  thereupon  ratifies  the  agreement,  and  directs  a 
conveyance  in  pursuance  of  its  terms,  and  in  fulfilment  of  it, 
it  does  not  seem  to  me,  that  any  provision  of  law  would  be 
violated.  It  is  not  uncommon,  in  applications  by  religious 
societies  desiring  to  sell  their  church  property,  to  state  the  pro- 
posed application  of  the  moneys  arising  therefrom.  It  was 
done  in  De  Ruyter  v.  St.  Peter's  Church  (supra).  In  that  case, 
the  corporation  being  insolvent  (see  S.  C.,  3  Barb.  Ch,,  120), 
the  Trustees  resolved  to  convey  all  its  property  to  Trustees 
for  the  payment  of  its  debts.  Their  petition,  presented  to  the 
vice-chancellor,  was  for  an  order  permitting  the  corporation 
to  sell  and  convey  its  property  to  Trustees,  "  in  trust  as  afore- 
said ;"  and  an  order  was  made  according  to  the  prayer  of  the 
petition.  Not  only  the  reasons  for  the  sale,  but  also  the  pro- 
posed manner  of  applying  the  proceeds  were  stated  in  the 


222  ABBOTTS'  PEACTICE   REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

petition,  and  the  chancellor  says  it  was  a  matter  of  discretion 
with  the  vice-chancellor,  whether  he  would  make  the  order  or 
withhold  his  consent.  The  practice  of  negotiating  and  agreeing 
upon  terms  first,  and  then  laying  the  agreement  before  the  court 
for  its  sanction,  is  approved  in  Bowen  v.  Irish  Presbyterian 
Church  (6  Bosw.^  245).  Indeed,  it  would  be  singular  if  it  were 
required  that  the  contract  of  sale  should  succeed  and  not  pre- 
cede the  allowance  of  the  court.  Whenever,  therefore,  a  relig- 
ious society  has  resolved  to  dispose  of  its  property,  and  has 
agreed  upon  the  terms  and  conditions  of  sale,  and  the  applica- 
tion to  be  made  of  the  money  arising  therefrom,  it  is  in  a  condi- 
tion to  seek  the  sanction  of  the  court,  and  such  sanction  may 
properly  be  of  the  entire  agreement. 

The  next  objection  is  that  the  application  was  not  made  by 
the  corporation,  but  by  the  Trustees. 

The  petition  states  that,  at  a  meeting  of  the  church  and 
congregation,  duly  called,  the  Trustees  were  authorized  and 
directed  to  make  application  for  leave  to  convey. 

A  religious  corporation  consists  of  the  persons  who  have 
been  stated  attendants  upon  divine  worship  for  one  year,  and 
have  contributed  to  the  support  of  the  church,  according  to 
its  usages  and  customs.  Such  persons  are  also  the  corpora- 
tors. All  corporations  act  through  and  by  their  officers,  or 
other  constituted  agencies  to  which  the  corporators  have  dele- 
gated the  power  to  act ;  and,  especially,  are  Ihe  Trustees  of 
religious  corporations  invested  with  the  custody,  care  and  su- 
pervisory control  of  all  the  temporalities  appertaining  to  the 
church,  and  through  them  alone  the  corporation  can  act. 

The  direction  and  authority  given  to  the  Trustees,  made  the 
application  as  much  the  application  of  the  corporators,  as  if 
each  individual  had  signed  the  petition.  The  statute  does  not 
prescribe  any  form,  nor  does  it  in  terms,  require  that  a  majority 
of  the  corporators  should  unite.  No  corporation,  however,  can 
act  unless  its  action  is  invoked  by  a  majority  of  the  corpora- 
tors. This  rule  is  applicable  to  all  bodies,  unless  a  less  num- 
ber are  given  the  power  by  some  special  provision  of  law. 
The  statute  being  silent,  the  court  will  intend,  for  the  pur- 
pose of  acquiring  jurisdiction,  that  a  sufficient  number  have 
authorized  the  application.  But  the  cases  of  Matter  of  St. 
Ann's  Church,  14  Abb.  Pr.,  424  ;  and  Matter  of  Baptist  So- 
ciety of  Canaan,  20  *How.  Pr.,  324,  go  farther,  and  hold  that 


NEW  SERIES  ;  VOL.   I.  223 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

the  Trustees  may  make  the  application  irrespective  of  any 
ote  of  the  corporators. 

The  case  of  Wyatt  v.  Benson,  14  All.  Pr.,  182,  cited  by  the 
>laintiffs'  counsel,  is  not  opposed.      The  application  in  that 
;ase  was  by  a  majority  of  the  Trustees  ;  and,  it  appeared  on 
he  part  of  those  opposing  the  application,  that  a  large  major- 
ty  of  the  corporators  were  not  favorable  to  it.     If  the  oppo- 
tion  had  not  appeared,  the  learned  Judge  who  gave  the 
opinion,  says  :  "  It  might  be  assumed  that  the  Trustees  repre- 
sented the  views  of  the  corporators  in  making  the  application." 
But  the  order  in  that  case,  being  in  fieri,  the  court  revoked 
its  sanction,  on  the  ground  that  a  majority  of  the  corporators 
were  opposed  to  a  sale. 

All  difficulty  in  the  way  of  the  case  before  us,  is  removed  by 
the  statements  made  in  the  petition  and  the  papers  annexed  to 
it.  It  says  there  were  sixty-seven  pew-owners,  or  pew-holders, 
of  vtliom  forty-one,  or  nearly  two-thirds,  had  signed  a  written 
consent  and  request  that  an  order  be  made  directing  the  Trus- 
tees to  convey.  It  further  states  that  all  the  other  pew-owners 
and  pew-holders  were  in  favor,  and  approved,  of  forming  the 
union  of  the  two  churches.  Besides,  the  proceedings  of  a 
public  meeting  of  the  Church  and  Congregation,  called  pursu- 
ant to  public  notice,  which  are  annexed  to  the  petition,  show 
an  express  authority  from  the  corporators  to  the  Trustees. 
There  was,  therefore,  an  abundance  of  evidence  before  the 
court  to  show  that  the  application  had  the  approval  of  all  the 
corporators. 

The  third  objection  is,  that  the  order  does  not  direct  the  ap- 
plication of  the  mone3rs  arising  from  the  sale. 

The  consideration  for  the  sale  was  not  the  nominal  sum  of 
five  dollars  named  in  the  deed. 

The  agreement  set  out  in  the  petition  by  which  the  defend- 
ants agreed  to  assume  and  pay  the  plaintiffs'  debts,  amounting 
to  seventy-three  thousand  dollars — to  unite  with  the  plaintiffs 
in  forming  one  church  organization — to  adopt  the  plaintiffs' 
corporate  name — to  sell  their  property  in  Oliver  Street — to 
cause  the  resignations  of  its  own  Trustees,  and  to  provide  for 
the  selection  of  new  Trustees  by  the  United  Church  and  con- 
gregation, constitutes  the  real  and  only  consideration  for  the 
transfer ;  and  the  Court  was  asked  to  give  its  sanction  to  that 
agreement  and  nothing  more.  Judge  DENIO  says,  in  Wheaton 


224  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

v.  Gates,  18  N.  Y.,  375,  that,  "  as  to  the  disposition  of  the 
proceeds,  the  court  has  no  power  to  originate  any  scheme,  or 
even  to  execute  any  enterprise  determined  on  by  the  corpora- 
tion, but  only  to  allow  or  disallow  the  application  of  the  moneys 
to  such  purposes  as  the  corporation,  shall  represent  to  be  most  for 
the  interest  of  the  Society."  The  allowance  by  the  court  of  the 
application  proposed  by  the  Trustees  in  this  case  is  sufficiently 
shown  by  the  order  it  made ;  and,  it  appears  to  me,  it  could 
not  have  been  shown  in  a  more  satisfactory  or  effectual  a 
manner. 

But,  even  if  the  order  should  have  been  more  specific,  it 
cannot  affect  the  title  made  under  it.  The  court  having  juris- 
diction, any  mere  irregularity  or  insufficiency  in  the  proceed- 
ings subsequent  to  the  petition  was  amendable,  and  would 
probably  be  cured  by  the  action  of  the  parties  under  it.  Be- 
sides, the  order  allowing  the  sale  might  have  been  made  sepa- 
rately from  the  order  directing  the  application  of  the  proceeds. 
In  Matter  of  Brick  Presbyterian  Church,  3  Edw.,  155,  the 
Vice-Chancellor  made  a  provisional  order  allowing  a  sale  to 
be  made,  "  if  a  proper  site  for  a  new  church  could  be  ob- 
tained." 

I  do  not  think,  in  this  case,  that  it  was  required  that  the 
order  should  do  more  than  sanction  the  arrangement  by  order- 
ing the  conveyance  to  be  made.  That  was  a  substantial  com- 
pliance with  the  statute. 

The  remaining  objection  is  one  of  more  difficulty. 

It  is  contended,  that  by  the  consummation  of  the  sale  of 
the  plaintiffs'  property,  their  corporation  became  extinct,  and 
that  such  result,  being  opposed  by  the  policy  of  the  statute,  • 
rendered  the  whole  transaction  void. 

The  object  of  the  statnte  was  to  prevent  improper  dispo- 
sitions of  church  property.  The  framers  of  the  law  must  have 
feared  that  cases  might  arise  where  it  would  be  proper  to  put 
a  restraint  upon  the  power  of  alienation,  and  they  have,  most 
wisely  I  think,  given  to  the  court  the  discretion  to  sanction,  or 
withhold  its  sanction,  in  all  cases.  In  any  given  case,  the  pro- 
priety of  a  sale  must  be  determined  by  the  court.  If  the 
application  comes  up  in  proper  form,  with  the  facts  necessary 
to  give  jurisdiction,  the  court  alone  is  authorized  to  judge  of 
the  expediency  of  the  sale  ;  and  the  duty  to  direct  the  appli- 
cation of  the  money  arising  therefrom,  in  a  measure,  controls 


NEW  SEKIES;  VOL.  I.  225 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

and  prevents  any  improper  exercise  of  the  discretion  of  the 
court. 

But  it  is  said  the  transaction  between  these  parties,  al- 
though sanctioned  by  the  court,  was  not  such  a  transaction 
as  should  be  sustained.  Let  us  see  what  it  was. 

The  Madison  Avenue  Baptist  Church  had  purchased  lots, 
and  erected  thereon  a  church  edifice,  at  a  cost  of  one  hundred 
and  twenty-two  thousand  dollars,  and  were  in  debt  to  the 
amount  of  seventy-three  thousand  dollars.  Owing  to  derange- 
ments of  business,  and  of  the  finances  of  the  country,  and  the 
existence  of  the  war  (1862),  they  had  failed  to  realize  from 
subscriptions,  or  the  sale  of  pews,  what  they  had  anticipated, 
and  were,  therefore,  unable  to  pay  their  liabilities,  or  meet  the 
current  expenses  of  the  church.  In  this  exigency,  it  was 
found  that  the  Baptist  Church  in  Oliver  Street  had  resolved 
to  sell  their  church  property,  and  remove  up  town.  It  was 
also  found  that  the  church  in  Oliver  Street  would  have  a 
surplus  in  money,  on  a  sale  of  their  property,  of  about  sixty- 
five  thousand  dollars.  The  Church  in  Madison  Avenue  sought 
the  union,  and  it  was  finally  agreed,  with  the  consent  of  all  the 
corporators  of  each  Society,  that  the  Oliver  Street  Church 
should  take  title  to  the  Church  in  Madison  Avenue  ;  pay  the 
debts  and  assume  its  corporate  title ;  and  thenceforward  the 
two  societies  and  congregations  worship  as  one  congregation 
in  the  same  edifice. 

It  is  quite  clear  that  the  arrangement  was  mutually  advanta- 
geous, each  party  receiving  a  substantial  benefit.  The  plaintiffs 
were  at  once  relieved  from  the  pressure  of  a  heavily  impending 
debt ;  and  in  this  aspect,  the  sale  may  be  regarded  as  a  quasi 
transfer  of  their  property  in  payment  of  their  debts,  within  the 
principle  of  De  Ruyter  v.  St.  Peter's  Church,  supra.  Although, 
in  strictness,  it  dissolved  the  plaintiffs'  corporation,  and  was  an 
abandonment  of  their  distinctive  separate  organization,  in  real- 
ity it  was  a  mere  union  with  another  congregation,  holding  the 
same  tenets,  conforming  to  the  same  faith,  and  submitting  to 
the  same  governmental  discipline. 

A  corporation  aggregate  has  perpetual  succession  in  its  Trus  - 
tees,  or  officers  vested  with  its  temporal  concerns.  The  officers 
may  cease  to  act,  but  the  succession  continues.  The  change  in 
this  case  was  nominal,  rather  than  real.  The  plaintiffs'  corpor- 
ators became  corporators  in  the  transformed  Church,  by  force 
K  S.— VOL.  I.— 15. 


226  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street 

of  the  agreement ;  they  were  eligible  to  office,  and  entitled  to 
vote.  In  short,  the  agreement  guaranteed  to  all  the  corporators 
of  the  Madison  Avenue  Church  the  rights,  privileges  and  powers 
in  the  united  Church,  which  they  had  before  possessed  and  en- 
joyed in  their  separate  organization. 

I  am  not  prepared  to  say  that  if  the  sale  had  operated  to  ex- 
tinguish the  plaintiffs'  corporation  as  a  religious  denomination, 
it  would  be  free  from  exception.  Yet  such  a  sale,  with  a  dis- 
tribution of  the  proceeds  among  all  the  corporators,  with  the 
consent  of  all  having  an  interest  in  the  subject,  would  seem  to 
be  within  the  discretion  of  the  Court  to  sanction  and  approve. 
(Matter  of  Church  in  Saugerties,  supra), 

The  mere  denominational  character  of  a  church  may  be 
changed  by  its  corporators  at  pleasure  (First  Bap.  Ch.  v.  "With- 
erell,  3  Paige,  296 ;  Millet*  v.  Gable,  2  Den.,  492  ;  Robertson 
v.  Bullions,  1  Kern.,  243 ;  Parish  of  Belport  v.  Tooker,  29_Z?ar&., 
256).  .In  the  last  case,  the  form  of  church  government  was 
changed  from  a  Congregational  Church  to  an  organization  in 
connection  with  the  Presbyterian  body. 

The  idea  that  the  denominational  or  sectarian  character  of  a 
church  enters  as  an  element  into  the  act  of  incorporation,  is  ex- 
ploded in  the  cases  last  cited.  A  society  becomes  incorporated 
as  a  religious,  not  as  a  sectarian  body  (Petty  v.  Tooker,  21  N.  T. 
267);  and  the  same  principle  which  allows  a  majority  of 
corporators  to  change  the  articles  of  faith,  would  seem  to  author- 
ize a  majority  of  two  societies,  entertaining  the  same  belief,  to 
unite  and  form  themselves  into  one  Church.  And  such  a  union, 
in  my  judgment,  cannot  be  improper.  An  example  of  such  a 
union  is  found  in  the  case  of  Cammeyer  v*  The  United  German 
Lutheran  Church  (2  Sandf.  Ch.,  186),  where  one  Church  So- 
ciety transferred  all  its  real  and  personal  property  to  another 
Church  Society,  and  the  united  churches  thereafter  worshipped 
as  one  congregation.  It  is  true  of  that  case,  that  neither  of  the 
Societies  were  incorporated  at  the  time  of  the  union ;  neverthe- 
less, the  case  is  an  apt  illustration  of  the  propriety,  as  it  is  a 
pointed  instance,  of  such  a  union. 

I  am  not  aware  that  any  court  has  assumed  to  have  jurisdic- 
tion over  the  spiritual  body  which  constitutes  the  church,  as 
distinguished  from  the  temporal  body,  which  consists  of  its  mem- 
bers, and  is  represented  by  its  Trustees.  Over  such  spiritual 
body,  legal  or  temporal  tribunals  do  not  profess  to  have  any 


NEW  SERIES;  VOL.   I.  227 

The  Madison  Avenue  Baptist  Church  t'.  The  Baptist  Church  in  Oliver  Street. 

control ;  hence,  all  questions  concerning  the  faitn  or  practices  of 
the  church  and  its  members,  belong  to  the  church  judicatories 
in  their  connection  ;  while  on  the  other  hand,  such  ecclesiastical 
jndicatories  cannot  interfere  with  the  temporal  concerns  of  the 
society  with  which  the  church  members  are  united. 

I  may  state  in  this  connection,  that  the  society  long  in  exist- 
ence, instituted  to  aid  feeble  churches,  has,  where  it  was  prac- 
ticable, recommended  a  union  of  weak  churches,  upon  the 
conviction,  from  long  observation  and  experience,  that  the 
strength  acquired  by  the  union  would  add  to  the  efficiency  and 
usefulness  of  both. 

The  doctrine  that  contracts  of  corporation  which  are  ultra 
vires,  are  void,  does  not  receive  favor  with  courts.  Where  par- 
ties have  contracted  in  good  faith  with  a  corporation,  and  have 
executed  their  contract,  and  the  corporation  has  received  and 
accepted  the  benefits,  it  is  not  to  be  tolerated  that  they  can  be 
permitted  to  seek  exemption,  on  the  ground  that  they  had  no 
power  to  contract  (Feeter  v.  Heath,  11  Wend.,  478  ;  State  of 
Indiana  v.  Woram,  6  Hill,  33 ;  Sherman  v.  N.  Y.  Central  R.  R. 
Co.,  22  Barb.,  239).  The  only  exception  to  this  rule,  are  those 
cases  where  corporations  are  prohibited  by  some  express  provis- 
ion of  law,,  or  are  required  to  contract  in  some  prescribed 
form  (Brady  v.  The  Mayor,  &c.,  of  New  York,  20  N.  T., 
312;  Bonesteel  v.  The  Same,  22  Id.,  162).  In  this  view  it 
seems  plain,  that  the  plaintiffs  could  have  been  compelled 
specifically  to  perform  their  contract,  by  procuring  an  order  to 
convey,  and  by  transferring  the  title  to  their  property  to  the  de- 
fendants (Fry  on  Spec.  Perf.,  233). 

The  case  of  Wheaton  v.  Gates,  before  referred  to,  seems  to  have 
been  regarded  by  the  learned  justice  at  special  term,  as  controll- 
ing. It  was  also  insisted  by  the  respondent's  counsel  that  it  was 
conclusive. 

It  is  proper  to  say  of  that  case,  at  the  outset,  that  it  was  an 
action  brought  by  a  corporator  for  the  purpose  of  having 
declared  null  and  void  an  order  of  a  county  court,  giving  itg 
sanction  to  a  sale  of  church  property.  In  that  respect  it  differs 
from  this  case,  which  is  an  attempt  to  attack,  collaterally,  the 
validity  of  a  similar  order,  which,  in  my  opinion,  can  be  done 
only  by  a  direct  action  (Clarke  v.  Van  Surlay,  15  Wend.,  436). 
The  petition  in  the  case  cited,  was  verified  by  four  only,  of  six 
Trustees,  and  had  annexed  to  it  the  concurrence  of  a  few  only 


228  ABBOTTS'  PRACTICE  REPORTS. 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

of  the  members  of  the  society.      The   prayer  was,  that  the 
dhurch  might  be  sold,  and  the  proceeds,  after  paying  debts, 
might  be  divided  among  the  persons  who  held  deeds  of  pews,  in 
proportion  to  the  sums  paid  by  them.      The  referee,  who  tried 
the   action,  found   as  facts,  that   there  was  no  necessity  for 
selling  to  pay  debts,  and  that  the  sole  object  was  to  effect  a 
distribution  of  the  proceeds  among  a  portion  of  the  members ; 
and  he  decided  that  the   order  for  the  sale  was  void,  "on 
account  of  the  provision  for  the  distribution  of  the  proceeds 
among  the  pew  owners."      It  nowhere  appeared  that  any  con- 
siderable number  of  the  corporators,  certainly  not   a  majority, 
applied  for  the  order.      It  is  stated  that  several  members  of  the 
society  concurred,  but  it  is  evident  from  the  statement  of  the 
case,  that  Only  a  small   portion  of  the  members,  and  a  bare 
majority  of  the  Trustees,  consented  to  the  application.      The 
decision  of  the  court  follows  and  adopts  the  decision  of  the 
referee,  that  there  was  no  necessity  for  a  sale  to  pay  debts ;  and 
that  the  division  of  the  proceeds  among  the  pew  holders  was 
illegal,  and  rendered  the  order  void.      The  decision,  both  of 
the  referee  and  of  the  court,  is  based  upon  the  fact  that  all 
the  persons  interested  had  not  consented,  and  the  learned  judge 
says,  "  It  was  not  in  the  power  of  the  Trustees,  or  a  majority  of 
the  members,  or  of  the  court,  to  abolish  the  corporation  or  dis- 
solve the  society." 

But  he  seasonably  adds,  "  If  every  individual  having  any  inte- 
rest in  the.  matter  should  concur,  it  might  be  done." 

As  a  decision,  Wheaton  v.  Gates  sustains  these  general  propo- 
sitions ;  that  the  statute  confers  no  power  upon  the  court  to  con- 
trol or  manage  the  property  of  religious  societies;  that  the 
whole  power  of  administration  is  conferred  upon  the  Trustees, 
with  the  single  qualification,  that  before  they  can  sell  they 
must  apply  to  the  court  for  its  allowance  of  the  transaction ;  and 
to  allow  or  disallow  the  application  of  the  moneys  to  such  pur- 
poses as  the  corporation  shall  represent  to  be  most  for  the  int&- 
rest  of  the  society. 

From  these  propositions  it  follows  that  upon  an  application  for 
the  sale  of  church  property,  the  only  duty  of  the  court  is  to 
see — 

First.  That  sufficient  reason  exists  therefor ;  and 
Second.  That  a  proper  disposition  of  the  proceeds  is  made,  and 
the  case  decides  nothing  more. 


NEW  SERIES;  VOL.  I.  229 

The  Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in  Oliver  Street. 

I  have  examined  the  case  before  us,  upon  strictly  legal 
grounds,  and  have  endeavored  to  show,  that  the  court  had 
jurisdiction  to  make  the  order  directing  the  plaintiffs  to  convey, 
and  that  the  order  was  a  proper  one.  It  therefore  becomes 
unnecessary  to  examine  the  other  questions  raised  on  the  ap- 
peal. 

If  I  am  right  in  these  views  I  have  expressed,  it  follows,  that 
the  rejection  of  the  evidence  offered  to  establish  the  defence, 
was  erroneous,  and  the  judgment  for  that  reason  should  be  set 
aside. 

But  before  concluding,  I  may  be  indulged,  I  hope,  in  a  single 
suggestion  in  regard  to  another  aspect  of  the  case. 

The  entire  good  faith  of  the  parties  who  entered  into  this 
mutually  beneficial  agreement,  cannot  for  a  moment  be  ques- 
tioned. The  promptness  with  which  they  carried  it  into  im- 
mediate effect ;  and  the  desire  they  manifested  to  complete,  in 
a  spirit  of  fairness,  what  they  had  undertaken  to  do,  cannot  fail 
to  satisfy  any  one  that  the  intentions  of  the  parties  were  upright. 
The  plaintiffs  procured  permission  to  convey,  and  delivered 
their  deed.  The  defendants  sold  their  property  in  Oliver 
street ;  came  into  the  plaintiffs'  church  and  united  with  them, 
and  as  one  congregation  engaged  in  divine  worship .  Debts  of 
the  plaintiffs,  amounting  to  upwards  of  fifty  thousand  dollars, 
were,  in  effect,  paid,  and  the  corporate  name  of  the  Madison 
Avenue  Baptist  Church  retained. 

So  far  the  parties  appear  to  have  acted  in  strict  accordance 
with  their  engagements.  They  came  together  in  a  spirit  of  fra- 
ternal love,  and  conformed  to  the  faith  and  submitted  to  the 
discipline  of  the  united  church. 

Having  done  this — having  gone  thus  far,  it  would  seem  as' if  a 
Christian  spirit,  if  not  a  better  judgment,  should  have  counselled 
acquiescence  and  peace. 

Among  men  who  do  not  profess  the  Christian  religion,  moral  ob- 
ligations are  not  always  recognized.  With  such,  the  compulsory 
power  of  the  law  alone  has  its  terrors.  But  there  is,  neverthe- 
less, or  should  be,  a  conscientious  sense  of  right  and  justice,  and 
of  moral  duty,  which  ought  to  control  the  actions  of  men,  and 
influence  them  in  the  discharge  of  their  obligations,  even  where 
the  law  exempts ;  and,  whatever  may  be  the  conceived  legal 
rights  of  parties,  if  there  is  any  moral  duty  unperformed,  it 


230  ABBOTTS'  PEACTICE  KEPOKTS. 

The  People  ex  rel.  Ryan  v.  Russel. 

j 

should  restrain  them  from  the  entanglements  and  consequences, 
always  disastrous,  of  strife  and  litigation. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered  with 
costs  to  the  appellants  on  the  appeal  to  abide  the  event. 

BARBOUB  and  GARVIN,  JJ.,  concurred. 
Judgment  accordingly. 


THE  PEOPLE,  on  the  relation  of  1C? ATX,  against  KUSSEL. 
Supreme  Court,  First  District;  General  Term,  May,  1866. 

HABEAS    CORPUS. — JUDICIAL  ACT. — CITY  JUDGE  OF   NEW 
YORK. — MANDAMUS. 

The  city  judge  of  the  city  of  New  York  has  power  to  allow  a  habeas  corpus. 
It  is,  however,  discretionary  with  him  to  allow  the  writ  or  not,  in  any  case , 
and  a  mandamus  will  not  lie  to  compel  him  to  allow  it. 

Mandamus. 

The  relator  was  committed  by  a  police  justice  upon  a  charge 
of  forgery,  and  applied  by  his  attorney  to  the  city  judge  of  New 
York,  for  a  habeas  corpus,  on  the  ground  that  the  commitment 
was  insufficient.  The  city  judge  refused  to  grant  the  writ,  and 
the  relator  applied  to  this  court  at  general  term,  for  a  mandamus. 

Elhridge  T.  Gerry,  for  the  motion. 
Abraham  D.  Mussel,  in  person,  opposed. 

BY  THE  COURT.* — BARNAKD,  P.  J. — The  city  judge  of  the  city 
of  New  York,  by  the  act  creating  his  office,  was  clothed  with 
all  the  judicial  powers  vested  by  law  in  the  recorder  of  the 
city  (Laws  of  1850,  chap.  205,  §  3),  and  was  directed  by  the  same 
section  to  perform  and  discharge  all  judicial  duties  imposed 

*  Present,  BABNABD.  P.  J.,  and  IKGBAHAM  and  SUTHERLAND,,  JJ. 


NEW  SERIES ;  VOL.  I.  231 

The  People  ex  rel.  Kyan  v.  llussel. 

upon  such  recorder  concurrently  with  him.  The  recorder 
is  by  statute  vested  with  the  power  of  a  Supreme  Court 
commissioner  (2  Rev,  Stat.,  281,  35).  As  such,  he  has  power  to 
allow  a  writ  of  habeas  corpus,  returnable  before  himself,  and 
to  take  such  proceedings  upon  a  return  to  the  writ,  as  one 
authorized  by  the  statute  goyerning  the  proceedings  in  such 
cases,  and  to  adjudge  a  discharge  of  the  party  imprisoned  or 
not,  as  he  shall  finally  determine  (2  Rev.  Stat.,  280,  §  18). 

The  question  presented  by  the  appeal  papers  is  whether  the 
city  judge  has  power  to  allow  a  writ  of  habeas  corpus.  It  is 
claimed  under  the  authority  of  Yates  v.  Lansing  (5  Johns.,  282), 
that  the  act  of  allowing  such  writ  is  ministerial,  and  not  judicial, 
and  this  decision  has  been  followed  by  this  court  in  Matter  of 
Nash  (16  Abb.  Pr.,  281), — and  that  therefore  the  city  judge  had 
no  power  to  allow  the  writ,  being  only  possessed  of  the  judicial 
powers  of  the  recorder. 

The  case  of  Yates  v.  Lansing  did  not  arise  under  the  present 
statutes  in  relation  to  habeas  corpus.  As  the  law  then  stood,  if 
the  chancellor,  or  judge  of  the  Supreme  Court,  "  in  the  vacation 
term,"  should  "deny  to  allow  any  writ  of  habeas  corpus  by  this 
act  required  to  be  granted,  being  applied  for  as  aforesaid,  he 
shall  forfeit  to  the  party  grieved  one  thousand  two  hundred  and 
fifty  dollars"  (1  Rev.  Laws  of  1813,  355,  §  4).  The  action  was 
against  the  chancellor  under  the  fifth  section  of  the  same  act, 
for  re-imprisonment  of  a  person  discharged  by  the  Supreme 
Court,  which  imposed  an  equal  penalty  for  such  re-imprisoning. 
It  was  held  that  the  chancellor  was  not  liable.  That  the  act 
for  which  the  action  was  brought  was  judicial,  and  no  action 
would  lie  for  a  judicial  error  in  judgment.  In  giving  the  opin- 
ion of  the  court,  the  chief  justice  does  say  that  "the  allowance 
of  the  writ  in  vacation  is  not  a  judicial  act,"  but  the  question  as 
to  the  character  in  which  a  judge  allowed  a  writ  in  vacation 
was  not  before  the  court,  nor  was  the  same  at  all  involved  in 
the  decision  of  the  question  which  was  presented  by  that  case. 
I  think  under  the  present  statute,  it  may  well  be  questioned  if 
the  allowance  of  the  writ  of  habeas  corpus  is  a  ministerial  act. 
The  contents  of  the  petition  are  prescribed,  and  the  exceptions 
of  those  classes  of  persons  given  by  statute  who  cannot  prose- 
cute it ;  a  copy  of  the  paper  under  which  restraint  is  made  is  to 
be  annexed,  unless  excuse  be  made  for  its  omission.  The  offi- 
cer may  determine  the  question  whether  he  will  allow  the  writ 


232  ABBOTTS'  PEACTICE  KEPOKTS. 

The  People  ex  rel.  Ryan  v.  Russel. 

or  not.  That  he  is  made  responsible  to  the  party  applying,  for 
an  erroneous  decision,  is  true.  So  is  the  Supreme  Court  judge, 
either  at  chambers  or  special  term.  So  are  all  courts  or  officers 
who  have  power  to  allow  the  writ,  but  it  seems  to  me,  that  the 
fact  of  responsibility  for  error  does  not  determine  the  character 
of  the  act  done.  It  is  judicial,  if  it  be  the  exercise  of  an  author- 
ity he  possesses  as  judge,  which  he  may  or  may  not  exercise,  as  he 
shall  determine  the  action  to  be  legal  or  not. 

It  will  thus  be  seen  that  it  is  of  serious  question  if  the  case  of 
Yates  v.  Lansing  is  authority,  for  the  case  of  Matter  of  Nash, 
upon  the  point  whether  the  act  of  the  allowance  of  a  writ  of 
habeas  corpus  is  a  ministerial  act  under  the  statute  as  it  now 
stands  ;  but  I  think  the  city  judge  has  jurisdiction  to  allow  these 
writs,  whether  the  allowance  of  them  is  ministerial  or  judicial. 
He  is  given  the  same  judicial  power  as  the  recorder.  After  the 
writ  is  allowed,  and  the  imprisoned  person  is  brought  before 
the  officer,  "  he  is  to  discharge  the  bail  and  remand  him  as  he 
shall  be  advised,  and  no  action  or  penalty  is  given  for  what  he 
shall  then  do  or  refuse  to  do  "  (Yates  v.  Lansing,  5  Johns.,  282). 
The  power  to  hear  and  determine  this  matter  is  judicial.  The 
recorder  has  this  power.  If  the  exercise  of  a  judicial  power 
given  by  law  to  the  city  judge,  requires  the  doing  of  a  necessary 
ministerial  act  to  initiate  such  proceeding,  he  may  do  such  act. 
The  city  judge  has  therefore  power  to  allow  the  writ ;  but  he 
may  refuse.  As  it  is  discretionary  with  him  whether  he  allows  it 
or  not,  the  remedy  is  not  by  mandamus. 

The  writ  of  mandamus,  when  addressed  to  a  judicial  officer, 
or  to  a  court,  can  only  order  the  officer  or  court  to  decide  upon 
the  matter  before  it,  but  there  is  no  power  to  direct  him  how  to 
decide.  That  rests  entirely  in  the  discretion  of  the  court  or 
officer.  As  the  city  judge  did  decide  in  this  case,  we  cannot  di- 
rect him  to  alter  his  decision. 


NEW  SERIES ;  VOL.  I.  233 

Strong  v.  Strong. 


STRONG  against  STRONG. 

New  York,  Superior  Court ;  General  Term,  February,  1865. 
Again,  May,  and  June,  1865. 

EVIDENCE. — DISCOVERY  AND  INSPECTION. — SERIES  OF  LETTERS. — 
SETTLEMENT  OF  ISSUES  IN  DIVORCE  CASES. 

All  the  parts  of  a  connected  correspondence,  having  relation  to  the  same 
subject,  may  undoubtedly  become  evidence,  where  one  part  is  introduced; 
but  it  is  not  to  be  assumed  that  friendly  letters  between  intimate  connec- 
tions form  a  series,  nor  is  there  any  presumption  that  the  subject  of  such 
successive  letters  is  the  same. 

The  provision  of  section  388  of  the  Code  of  Procedure — that  the  court  be- 
fore which  an  action  is  pending,  or  a  judge  or  justice  thereof,  may  in 
their  discretion,  and  upon  due  notice,  order  either  party,  to  give  to  the 
other,  within  a  specified  time,  an  inspection  and  copy,  or  permission  to 
take  a  copy,  of  any  books,  papers,  and  documents,  in  his  possession  or  un- 
der his  control,  containing  evidence  relating  to  the  merits  of  the  action  or 
the  defence  therein, — does  not  sanction  an  order  requiring  either  party 
to  disclose  evidence  which  he  intends  to  introduce  against  his  adversary. 

In  the  affidavit  or  petition  for  a  discovery  of  books  and  papers  a  statement 
of  the  advice  of  counsel  and  belief  of  the  deponent  is  not  alone  sufficient. 


In  the  settlement  of  issues  in  a  divorce  case  an  issue  whether  the  party  was 
guilty  of  adultery  with  a  specified  person,  at  any  time  before  the  com- 
mencement of  the  action,  should  not  bo  allowed.  Some  limits  of  time  and 
place  must  be  indicated. 

But  issues  actually  made  in  the  pleadings,  and  inserted  accordingly,  with- 
out objection,  in  the  issues  as  framed  for  trial,  will  not  be  expunged  on 
motion,  on  the  mere  ground  of  indefiniteness  as  to  time  and  place. 

Principles  relating  to  the  framing  of  issues  in  such  cases,  state  d. 

This  action  was  brought  to  obtain  a  divorce  a  vinculo,  on  the 
ground  of  alleged  adultery  of  the  defendant,  and  the  answer 
set  up  the  general  issue. 

I.  February,  1865.  Appeal  from  an  order  requiring  the 
plaintiff  and  his  counsel  to  furnish  sworn  copies  of  certain  let- 
ters within  a  time  certain  or  debar  him  from  giving  their  con- 
tents in  evidence  on  the  trial. 


234  ABBOTTS'  PRACTICE   REPORTS. 

Strong  v.  Strong. 

Subsequent  to  issue  joined,  the  plaintiff  -issued  a  commission 
to  Ohio,  and  there  examined  his  sister,  Mrs.  Julia  Bedell,  who 
swore  in  substance  that  she  had  received  from  the  respondent 
in  1863,  various  letters,  containing  sundry  admissions  of  the 
facts  charged  in  the  complaint,  which  she  had  destroyed,  but 
the  contents  of  which  she  undertook  to  state  with  accuracy ; 
and  also  two  letters  which  she  had  preserved  and  sent  to  the 
Hon.  MURRAY  HOFFMAN,  one  of  the  plaintiff's  counsel  in  this 
case,  at  his  request. 

On  the  petition  of  the  defendant  and  affidavits  of  this  fact, 
stating  also  that  she  was  informed  these  two  letters  were  in. 
Mr.  HOFFMAN'S  possession,  were  intended  to  be  used  on  the 
trial  in  evidence  against  her ;  that  she  had  no  copies  of  them, 
but  was  informed  they  were  similar  to  those  destroyed  by  Mrs. 
Bedell,  and  that  in  the  opinion  of  her  counsel  she  could  not 
safely  proceed  to  trial  without  knowing  their  contents ;  this 
motion  was  made.  It  was  opposed  by  the  plaintiff  on  his  own 
affidavit,  which  denied  the  materiality  of  the  contents  of  the 
letters,  and  stated  that  the  respondent  had  disobeyed  some 
writ  issued  by  the  Supreme  Court ;  and  also  upon  the  affidavit 
of  Hon.  MURRAY  HOFFMAN, 'which  admitted  the  possession  by 
him  of  the  letters  in  question.  At  special  term  (after  argument 
by  Wm.  Curtis  Noyes,  for  the  motion,  and  Henry  A.  Cram, 
opposed),  the  motion  was  in  part  granted,  the  following  opin- 
ion being  rendered. 

BARBOUR,  J. — As  I  understand  the  section  of  the  Code  which 
is  relied  upon  by  the  moving  party  here  (§  388),  it  is  not  essen- 
tial that  the  two  letters  now  in  the  hands  of  the  plaintiff's 
counsel  may,  if  produced,  be  read  upon  the  trial  by  the  defend- 
ant. It  is  sufficient,  it  appears  to  me,  if  they  contain  evidence 
relating  to  the  merits  of  the  action  which  may  be  read  by  either 
of  the  parties.  Those  letters  appear  to  me  to  be  a  portion  of 
a  series  of  letters  written  by  the  defendant  to  the  witness,  who 
has  been  examined  and  has  testified  to  the  contents  of  the 
others  which  have  been  destroyed,  and  it  is  reasonable  to  as- 
sume that  they  relate  to  the  same  subject  matter.  It  they  do, 
there  is  no  reason  why  the  counsel  of  the  defendant  should  not 
be  permitted  to  examine  and  take  copies  of  them,  in  order  that 
they  may  protect  themselves  against  surprise  upon  the  trial, 


NEW  SERIES  ;  YOL.   I.  235 

Strong  v.  Strong. 

which  appears  to  have  been  one  of  the  objects  of  the  section  ; 
if  they  do  not,  such  inspection  cannot  harm  the  plaintiff. 

The  order  must  be  granted  as  to  the  two  letters  in  the 
possession  of  the  plaintiff 's  counsel.  The  letters  written  by 
the  defendant  to  J.  Cotton  Snith,  do  not  appear  to  be  in  the 
hands  of  the  plaintiff  or  those  of  his  counsel.  The  order  will 
be  settled  upon  two  days'  notice. 

From  the  order  made  upon  the  foregoing  motion,  the  plain- 
tiff now  appealed  to  the  general  term. 

Henry  A.  Cram,  for  the  appellant.— I.  An  order  granting  a 
discovery  is  an  appealable  order  (Woods  v.  De  Figaniere,  25 
How.  Pr.,  522). 

II.  The  motion  should  have  been  denied,  because  the  petition 
is  not  verified  by  the  defendant,  and  no  sufficient  excuse  is 
shown  for  the  omission  (Exchange  Bank  v.  Monteath,  4   How. 
Pr.,  280). 

III.  The  petition  itself  is  insufficient  and  defective.      It  does 
not  show  that  the  letters  contained  evidence   relating   to   the 
merits  that  the  petitioner  could  ever  use — it  showed  directly  the 
re  verse,  that  the  petitioner  could  never  give  the  letters  in  evidence. 
A  discovery  for  the  purpose  of  the  trial  has  never  yet  been  ex- 
tended  to  the  papers  that  the  other  side  alone  can  use  (Hoyt  v. 
American  Exchange  Bank,  1  Duer,  652 ;  Cassardv.  Hinman,  6  Id., 
695 ;  Pegram v. Carson,  10  Abb. Pr., 340  ;  S. 0.,  1 8 How. Pr.',  519 ; 
Wilkie  v.  Moore,  17  Id.,  480  ;  Morrison  v.  Sturges,  26  Id.,  177). 

IV.  On  all  the  papers  the  motion  should  have  been   denied. 
It  appearing  from  the  defendant's  papers,  that  the  description 
of  the  letters  applies  to  those  that  were  destroyed,   and  not   to 
those  in  the  possession  of  the  Hon.  MURRAY  HOFFMAN,  there  re- 
mains no  description  of  them  whatever,  and  no  reason  of  any 
kind  assigned  in  the  papers  for  their  discovery  (Rouse  v.  Whited, 
25  N.  T.,  170). 

Ellridge  T.  Gerry  and  John  McKeon,  for  the  respondent. 
— I.  The  letters,  to  obtain  copies  of  which  this  motion  was 
made,  clearly  relate  to  the  merits  of  the  action.  1.  The  ground 
on  which  the  plaintiff  seeks  his  divorce,  is  the  alleged  adultery 
of  the  defendant.  The  answer  denied  the  allegation,  and  after 
issue  joined,  the  witness,  Mrs.  Bedell,  was  examined  to  sustain 
the  charges  in  the  comDlaint.  She  swore  to  receiving  letters 


236  ABBOTTS'  PKACTICE  REPORTS. 

Strong  v.  Strong. 

from  tlie  defendant,  which  she  had  destroyed,  and  the  contents 
of  which  she  undertook  to  state  as  showing  "  confessions"  of  the 
acts  charged.  Two  letters  she  had  not  destroyed,  but  handed  over 
to  the  counsel  for  her  brother,  at  his  request.  2.  Obviously 
these  letters  are  the  connecting  links  in  the  series,  as  subsequent 
letters  were  received  and  destroyed  by  Mrs.  Bedell.  Non  con- 
stat  but  that  those  kept  explain  the  preceding,  or  nullify  the 
"confessions"  she  says  they  contained.  3.  The  affidavit  of  the 
plaintiff  as  to  their  relevancy  is  of  no  moment.  Coming,  as  it 
does,  from  a  prejudiced  and  interested  party,  and  unsupported 
by  the  certificate  or  advice  of  counsel,  its  statements  are  not  en- 
titled to  any  consideration,  and  should  be  wholly  disregarded. 
4.  No  copies  of  the  letters  having  been  kept,  or  any  memoranda 
of  their  contents  retained  by  the  defendant,  it  is  necessarily  im- 
possible for  her  to  state  more  fully  their  relevancy  to  the  issues 
in  the  case ;  and  as  the  plaintiff  has  not  produced  them  for  the 
inspection  of  the  court,  the  latter  can  only  judge  of  their  rele- 
vancy by  applying  the  maxim  noscitur  a  sociis. 

II.  It  is  not  pretended  that  the  letters  were  not  written  by  the 
respondent,  that  they  are  not  in  the  possession  of  the  appellant's 
counsel,  or  that  they  are  not  intended  to  be  used  in  evidence  on 
the  trial — indeed,  these  facts  are  admitted  expressly  in  the 
papers  in  opposition  to  the  motion.  1.  Substantively,  then,  the 
concession  is,  that  certain  letters  have  been  obtained  from  a  wit- 
ness by  counsel ;  that  they  are  to  be  used  in  evidence ;  but  that 
because  the  witness  has  not  shown  their  technical  relevancy  to 
the  issue,  the  defendant  is  not  entitled  to  copies  of  them  so  as  to 
avoid  surprise  on  the  trial.  2 .  The  possession,  by  the  plaintiff's 
counsel,  is  technically  sufficient  to  warrant  the  granting  of  the 
order  appealed  from,  as  he  could  be  compelled  to  produce  them 
(People  v.  Yail,  2  Cow.,  623,  affirming  S.  C.,  1  Id.,  589). 

HI.  But,  under  the  leading  case  in  this  court,  the  grounds  on 
which  the  order  appealed  from  was  granted  were  ample  to  sus- 
tain it  (Code,  §  388  ;  Woods  v.  De  Figaniere,  25  How.  Pr.,  522, 
and  cases  cited  and  reviewed  by  Chief  Justice  ROBERTSON  ;  Fergu- 
son v.  Hely,  10  Irish  Jurist  [N.  S.],  34;  Kelly  v.  Eckford,  5 
Paige,  548  ;  Davis  v.  Dunham,  13  How.  Pr.,425  ;  Gelston  v. 
Marshall,  6  Id.,  398 ;  Keeler  v.  Dusenbury,  1  Duer,  660). 

IV.  The  application,  in  the  first  instance,  rested  in  the  dis- 
cretion of  the  court  at  special  term.  Unless  there  is  some  sub- 
stantial error  on  the  face  of  the  papers  or  order  appealed  from, 


NEW  SERIES;  VOL.  I.  237 

Strong  v.  Strong. 

it  is  submitted  that  the  court,  at  general  term,  will  not  inquire 
as  to  -whether  the  discretion  was  properly  exercised  in  the  first 
instance  (Code,  §  388). 

V.  It  is  very  possible  that  Mrs.  Bedell  has,  through  mistake, 
given  a  very  erroneous  view  of  the  supposed  contents  of  the  de- 
stroyed letters.  A  cross-examination  by  new  commission,  based 
on  these  letters,  and  an  exhibition  of  copies  to  the  witness,  might 
make  perfectly  manifest  the  errors  in  her  recollection  (Malin  v 
Malin,  1  Wend.,  625 ;  Stone  v.  Eamsay,  4  Monroe  [Ky.~],  236, 
240,  241 ;  Allen  v.  Young,  6  Id.,  136  ;  Snelling  v.  Utterback,  1 
Bibb,  609  ;  Morris  v.  Morris,  2  Id.,  311 ;  Bernard  v.  Flournoy, 
4  J.  J.  Marsh,  101,  per  UNDERWOOD,  J. ;  Myers  v.  Baker, 
Hardin  [Ky.],  549  ;  Beers  v.  Broom,  4  Conn.,  247 ;  S.  C.,  2  Id., 
467,  sub  nom.  Beers  v.  Hawley,  in  point). 

VI. — The  order  should  be  affirmed,  with  costs. 

BY  THE  COURT.* — ROBERTSON,  Ch.  J. — The  order  appeal  ed 
from  appears  to  have  been  based  upon  the  assumption  of  a 
fact,  a  principle,  and  a  presumption  of  law,  none  of  which,  in 
my  judgment,  can  be  sustained. 

The  fact  assumed  is,  that  the  letter  in  question  belonged  to 
a  series,  which  of  course  implies  some  connection  with  each 
other,  whereas  nothing  of  the  kind  appears  anywhere  in  the 
papers  before  us  ;  all  the  parts  of  a  connected  correspondence 
having  relation  to  the  same  subject,  may  undoubtedly  become 
evidence  where  one  is  introduced ;  but  no  such  presumption 
could  arise  in  regard  to  friendly  letters  between  intimate  con- 
nections. In  the  case  of  Ferguson  v.  Hely  (10  Jurist,  JW.  S., 
34,  February  No.,  1865),  the  motion  was  granted  expressly 
upon  the  ground  that  the  correspondence  was  an  entirety,  and 
the  parts  required  to  be  produced  contained  evidence  in  favor 
of  the  defendant,  to  show  a  rescission  of  the  contract  sued 
upon.  There  is  no  pretence  in  this  case,  except  by  surmise  of 
counsel,  that  the  letters  in  question  contain  anything  favorable 
*o  the  defendant.  On  the  contrary,  the  suggestion  was  made 
that  the  defendant  was  entitled  to  an  inspection  of  them,  the 
better  to  enable  her  to  explain  on  the  trial  any  unfavorable 
statement  in  them. 

The  principle  of  law  applied  was  that  the  388th  section  of 

*  Present,  KOBKRTBON,  Ch.  J.,  QARVIN  and  McCuNN,  JJ. 


238  ABBOTTS'  PRACTICE  REPORTS. 

Strong  v.  Strong. 

the  Code  did  not  require  that  documents,  the  production  of 
which  was  sought  for  under  it,  must  be  such  as  could  be  read 
by  the  applicant  on  the  trial.  That  section  does  not  require 
that  they  shall  contain  evidence  in  relation  to  the  matter  to 
be  tried,  but  divides  such  evidence  into  that  relating  to  the 
merits  of  the  action,  and  that  relating  to  the  defence,  evidently 
intending  by  the  former  an  application  by  the  plaintiff,  and  in 
the  latter  one,  by  the  defendant.  If  it  had  been  intended  that 
either  litigant  had  a  right  to  know  what  evidence  his  adversary 
intended  to  introduce  against  him,  such  principle  would  have 
included  the  briefs,  memoranda  of  law  and  facts  of  counsel, 
and  instructions  of  their  clients,  as  well  as  other  documents ;  and 
indeed,  should  extend  to  an  oral  examination  of  the  parties 
themselves.  The  law  has  always  considered  sacred  the  rights 
of  both  parties  to  keep  secret  their  preparations  and  means  of 
attack  and  defence,  the  right  of  discovery  being  confined  en- 
tirely to  the  evidence  in  the  applicant's  favor. 

But  even  if  this  section  (388)  were  capable  of  such  latitu- 
dinarian  construction,  there  is  no  room  for  its  application  in 
this  case ;  since  there  is  no  proof  before  us  that  the  letters 
demanded  contain  any  evidence  relating  to  the  matters  in 
issue. 

And  lastly,  it  was  presumed  that  such  letters  being  part  of 
a  series  as  they  are  called,  must  have  related  to  the  same  sub- 
ject. I  know  of  no  principle  upon  which  every  friendly  letter 
between  the  same  parties  is  to  be  presumed  in  law  to  continue 
to  advert  to  some  one  subject,  or  that  confessions  of  guilt  on 
that  subject  may  be  supposed  to  be  reiterated,  or  protestations 
of  innocence  inserted  in  every  one ;  everything  is  sometime 
or  other  brought  to  an  end,  and  every  subject  is  sometimes 
absent  from  our  thoughts  or  writings.  Even  a  friend  does  not 
always  continue  to  be  confessor,  and  there  is  no  experience 
of  mankind  which  warrants  the  conclusion  adopted  in  this  case. 

The  application  was  made  upon  slight  grounds :  the  want  of 
possession  of  copies  of  the  letters,  or  recollection  of  their  con- 
tents is  not  sworn  to  by  the  defendant,  but  by  a  third  person 
alone,  and  that,  too,  not  on  information  and  belief.  How  it  is 
possible  for  one  person  to  testify  to  the  want  of  such  posses- 
sion .and  recollection  by  another,  I  am  at  a  loss  to  conceive. 
•It  has  not  the  support  of  even  information  to  that  effect  by 
that  other,  and  confidence  in  it  by  the  recipient.  Even  the 


NEW  SERIES ;  VOL.  I.  239 

Strong  v.  Strong. 

residence  of  the  defendant  is  unknown  to  her  brother,  and  no 
communication  seems  to  have  passed  between  them  since  the 
examination-  of  Mrs.  Bedell.  The  petition  is  also  vague  in  not 
stating  how  the  person  verifying  it  obtained  the  information 
that  such  letters  were  to  be  used  on  the  trial,  or  who  has  such 
intention.  At  all  events,  the  intention  would  be  of  little  avail, 
if  they  were  not  admissible  as  evidence. 

It  is  true  that  the  petition  states  that  such  letters  are,  as 
the  defendant  is  advised  by  her  counsel,  material  and  neces- 
sary for  the  defence  of  the  defendant,  which  consists  of  a  de- 
nial of  the  allegations  of  the  complaint ;  but  the  advice  of 
counsel  or  belief  of  a  party  cannot  be  substituted  for  the 
judgment  of  the  court,  upon  the  facts  and  circumstances  show- 
ing the  necessity  of  the  productions  which  are  to  be  spread  be- 
fore it  (McAllister  v.  Pond,  15  How.  Pr.,  299  ;  Jackling  v. 
Edmonds,  3  E.  D.  Smith,  539).  The  court,  therefore,  not  hav- 
ing before  them  sufficient  information  of  the  contents  of  such 
letters,  to  enable  it  to  decide  that  they  would  be  either  pre- 
judicial or  beneficial  to  either  party  as  evidence,  ought  not  to 
compel  their  production :  as  the  application  becomes  thereby 
entirely  a  fishing  one.  The  order  appealed  from  should  be 
reversed  with  costs. 

McCuNN,  J.,  dissented. 


IT.  May,  1865. — Appeal  from  a  portion  of  an  order  made  at 
special  term,  settling  additional  issues. 

In  the  month  of  January,  1864,  the  plaintiff  brought  this  suit 
to  obtain  a  divorce  from  his  wife  on  the  ground  of  her  alleged 
adultery.  An  answer  was  interposed  denying  the  adultery, 
coupled  with  a  plea  of  forgiveness  of  any  oflfence  complained  of. 
Upon  these  pleadings,  issues  of  fact  to  be  tried  by  a  jury  were 
framed  and  settled  by  the  court,  the  first  of  which  was,  "  Has 
the  defendant,  since  her  marriage  with  the  plaintiff,  committed 
adultery  with  Edward  N.  Strong  ?"  After  the  cause  had  been 
at  issue  over  six  months,  the  defendant  moved  for  leave  to  file 
a  supplemental  answer  setting  up  the  plaintiff's  adultery  with  a 
Mrs.  Electa  M.  Potter.  Justice  McCuNN  granted  the  motion  (29 
How.  Pr.,  432),  but  struck  out  certain  of  the  allegations  in  the 


240  ABBOTTS'  PEACTIOE  KEPOKTS. 

Strong  v.  Strong. 

proposed  supplemental  answer.  In  settling  the  issues  arising  on 
the  amended  pleadings,  he  refused  to  allow  the  following  one, 
and  from  his  order  the  present  appeal  was  taken.  . 

"Has  the  plaintiff,  since  his  marriage  with  the  defendant, and 
before  the  commencement  of  this  action,  committed  adultery 
with  one  Electa  M.  Potter  2" 

JZlbridge  T.  Gerry  and  Jo  fin  McKeon,  for  the  appellant. — I. 
The  issue  proposed  and  rejected  was  framed  with  the  intent  of 
meeting  the  first  issue  framed  upon  the  original  pleadings.  1. 
Such  an  issue  would  have  been  a  proper  one  in  the  first  in- 
stance, had  the  answer  been  original  and  not  supplemental ;  the 
person  with  whom  the  adultery  was  charged  being  expressly 
named  in  the  issue  proposed,  and  only  the  time  and  place  of  the 
adultery  being  laid  as  unknown,  (a.)  In  substance,  there  being 
a  claim  for  affirmative  relief  in  the  supplemental  answer,  it  was 
equivalent  to  a  cross  bill  for  divorce.  (5.)  In  such  a  bill  the 
complainant  has  a  legal  right  to  show  material  acts  tending  to  sus- 
tain the  charges  on  which  it  is  based ;  even  if  in  addition  to 
specific  allegations  there  be  an  averment  of  alia  enormita  (In- 
gersoll  v.  Ingersoll,  1  Code  Rep.,  102 ;  Casey  v.  Casey,  2  Barb., 
59).  2.  Such  an  issue  is  warranted  by  precedent  (Forrest  t>. 
Forrest,  printed  case  in  this  court,  and  in  the  Court  of  Appeals, 
fol.  1797). 

II.  Nor  was  the  disallowance  of  the  proposed  amendment  a  mat- 
ter of  discretion  with  the  court  below,  and  therefore  not  properly 
reviewable  on  appeal.  It  affected  a  substantial  right,  by  depriv- 
ing the  appellant  of  the  opportunity  of  proving  any  acts  of 
adultery  with  Mrs.  Potter,  the  very  essence  of  the  answer,  save 
those  especially  alleged  in  the  supplemental  answer.  1.  Allowing 
a  defendant  to  put  in  a  supplemental  answer  setting  up  a  new 
defence,  which,  if  established,  will  be  fatal  to  plaintiff's  action, 
has  been  held  to  be  a  matter  of  discretion,  but  such  as  can  be 
appealed  from  (Harrington  v.  Slade,  22  Barb.,  161).  2.  If  this 
be  so,  all  the  issues  which  naturally  arise  out  of  the  answer 
ought  to  be  reviewable  on  appeal,  and  the  order  should  be  BO 
modified  with  costs. 

Henry  A.  Cram,  for  the  respondent. — I.  In  making  the  ap- 
plication to  file  a  supplementary  answer,  the  defendant  must 
state  specifically  what  he  wishes  to  put  on  the  record  in  order 


NEW  SERIES;  YOL.  I.  241 

Strong  v.  Strong. 

that  the  court  may  judge  how  far  his  application  is  reasonable 
(1  Barb.  Ch.,  166,  citing  Curling  v.  Marquis  of  Townsend,  19 
Yes.,  628). 

II.  The  adultery  must  be  specifically  charged  with  such  cer 
tainty  as  to  time,  place  and  person,  that  the  defendant  may  be 
able  to  meet  the  fact  at  the  trial ;  otherwise  the  court  will  not 
award  a  feigned  issue   (Codd  v.  Codd,  2  Johns.  Ch.,  224 ;  "Wood 
v.  Wood,  2  Paige,  109). 

III.  The  name  of  the  person  with  whom  the  adultery  was 
committed  must  be  stated,  if  known.     If  not  known  to  the  com- 
plainant, that  fact  should  be  averred,  and  the  time,  place  and 
circumstances  of  the  adultery  should  be  stated  (2  Barb.  Ch.,  256 ; 
Codd  v.  Codd,  2  Johns.  Ch.,  224;  Wood  v.  Wood,  2  Paige,  109 ; 
Bokel  v.  Bokel,  3  fflw.,  376). 

BY  THE  COUKT.* — ROBEKTSON,  CH.  J. — The  appeal  in  this  case 
presents  the  question,  whether  the  learned  justice  who  settled 
the  issues  in  it,  was  warranted  in  refusing  to  permit   an  issue 
whether  the  plaintiff  was  guilty  of  adultery  at  any  time  before  the 
commencement  of  this  action,  with  the  person  mentioned  in  the 
defendant's  supplemental  answer,  to  be  tried  at  the  same  time 
with  the  others.    It  is  very  evident  that  the  jurors  who  are  to  try 
such  issue,  could  answer  such  question  in  the  affirmative,  with- 
out at  all  agreeing  as  to  the  occasion  of  the  offence.      No  issues 
ought  properly  to  be  tried,  except  what  will  affect  the  decision, 
and  both  parties  are  bound  to  point  out,  with  reasonable  precis- 
ion, the  particular  circumstances  intended  to  be  established,  by 
time  and  place,  as  well  as  person.     The   statute  as  well  as  all 
the  authorities,  requires  this  (Codd  v.  Codd,  2  Johns.  Ch.,  224  ; 
Wood  v.  Wood,  2  Paige,  108 ;  Bokel  v.  Bokel,  3  Eduo.,  376  ;  2 
Barb.  Ch.,  256).     The  other  issues  in  the  case  are  fully  as  wide 
as  the  defendant  was  entitled  to  ;  the  twelfth  and  thirteenth  of 
each  issues  cover  all  the  time  between  the  1st  of  September, 
1861,  and  the  1st  of  May,  1862,  everywhere  in  the  city  of  New 
York ;  the  fourteenth  covers  all  the  time  from  the  1st  of  May, 
1864,  to  the  16th  of  January  last,  and  the  same  area  of  locality. 
Such  issues  correspond  with  the   allegations  in  the   answer. 
There  is  no  allegation  in  the  answer  of  a  commission  of  the  of- 
fence named  in   such  rejected  issue,  with  the  party  therein 

*  Present,  ROBERTSON,  CH.  J.,  BARBOUR  and  McCoNN,  JJ. 
N.  S.— YOL.  I.— 16. 


242  ABBOTTS'  PRACTICE  REPORTS. 

Strong  v.  Strong. 

named  generally,  without  reference  to  time  or  locality.  It 
consequently  is  not  one  of  the  "  facts  contested  in  the  pleadings  " 
in  this  action  which  the  statute  authorizes  to  be  tried  as  an  issue 
(2  Rev.  Stat.,  145). 

The  order  appealed  from  should  be  affirmed,  with  costs. 

Order  accordingly. 


III.  June,  1865.  The  defendant  then  moved  at  special  term 
to  vacate  the  order  settling  the  issues  on  the  original  pleadings, 
on  the  ground  that  those  issues  were  improperly  framed  within 
the  above  decision.  The  court  denied  the  motion,  and  the 
defendant  appealed  to  the  general  term. 

John  HcKeon,  for  the  appellant. 
Henry  A.  Cram,  for  the  respondent. 

BY  THE  COTTKT.*— MONCRIEF,  J. — There  are  several  reasons 
why  the  order  should  be  affirmed.  First — A  motion  to  set 
aside  a  proceeding  for  irregularity  must  be  made  promptly,  and 
before  the  moving  party  takes  another  step  in  the  cause  (Persse 
&  Brooks  Paper  Works  v.  Willet,  14  Abb.  Pr.,  119  ;  Low  v. 
Graydon,  Id.,  443 ;  Lawrence  v.  Jones,  15  Id.,  110). 

There  was  an  interval  of  eight  months  between  the  entry  of 
the  order  complained  of  and  the  motion  to  set  aside.  Many 
steps  have  been  taken  on  the  part  of  the  defendant,  and  it  is 
said  the  issues  have  been  upon  the  day  calendar  ,  during  this 
period,  and  reserved  ready  for  trial  on  her  behalf. 

Second — There  was  no  irregularity  in  the  order  sought  to  be 
vacated  ;  the  ground  suggested  did  not  exist  at  "the  time  it  was 
entered. 

Third.  The  order  appears  to  have  been  made  after  consultation 
and  full  deliberation  by  eminent  counsel  acting  on  behalf  of 
the  respective  parties,  and  there  is  no  intimation  that  either 
gentleman  was  not  as  well  informed  upon  the  law,  practice 
and  forms  in  such  cases,  as  they  could  have  been,  upon  reading 
the  opinions  delivered  at  the  general  term,  in  May  last. 

Fourth — The  order  has  been  acquiesced  in  for  eight  months, 
and  the  time  to  appeal  has  expired.  The  court  cannot  extend 
the  time  to  appeal  (Code,  §  405). 

Fifth — The  issues  sought  to  be  expunged  were  made  by  the 

*  Present,  MONCBIEF,  BAUBOUB  and  GABVIN,  JJ. 


NEW  SERIES ;  VOL.  I.  243 

Strong  v.  Strong. 

pleadings,  and  did  not  require  to  be  settled.  Issues  of  fact 
arise  upon  material  allegations  in  the  complaint,  controverted 
by  the  answer  (Code,  §  250). 

Sixth — The  issue  tendered  upon  the  supplemental  answer  (if 
correctly  set  forth  in  the  appeal  papers)  was  properly  disallowed, 
for  the  reason  that  the  answer  contained  no  such  allegation. 

Seventh — A  complaint  is  not  fatally  defective  which  alleged 
the  commission  of  the  offence  "  within  five  years  "  next  before 
the  commencement  of  the  action.     This  is  all  the  statute  re- 
quires in  that  regard  (2  Rev.  Stat.,  145,  §  55,  subd.  3).   The  de- 
fendant may  take  issue  upon  such  an  averment  and  proceed 
to  trial,  or  he  may  require  it  to   be  made  more  definite  and 
certain  (Code,  §  160).     It  was  the  practice  in  the  Court  of 
Chancery  to  have  the  charges  of  adultery  made  more  explicit, 
at  the  time  a  feigned  issue  was  applied  for,  and  the  court 
directed  issues  to  be  so  framed  that  neither  party  could  take 
undue  advantage  of  the  other  at  the  trial  (Wood  v.  Wood,  2 
Paige,  108).     The  Code  provides  protection  quite  as  liberally 
(§§  173,  174,  390,  391 ;  14  Abb.  Pr.,  36  ;  Y  How.  Pr.,   294  ;  3 
Abb.  Pr.,  36).     Assuming  a  general  charge  to  be  true,  the  de- 
linquent cannot  desire  to  have  it  made  more  specific,  and  if 
the  accusation  be  false,  no  amount  of  critical  nicety  of  varia- 
tion can  be  useful  to  the  person  wrongfully  complained  of; — 
the  skill  of  the  advocate  must  develope  the  perjury  by  cross- 
examination. 

Lastly — The  grievance  alleged  on  behalf  of  the  defendant  is 
groundless  in  fact.  The  complaint  tendered  the  issues,  which 
were  settled  by  the  order  of  the  8th  October,  18G4.  The  answer 
of  the  defendant  did  not  tender  the  issue  which  was  disal- 
lowed. The  defendant,  on  the  31st  January,  1865,  did  not  ask 
to  have  all  the  issues  reframed,  or  any  one  reformed  or  ex- 
punged, but  simply  asked  for  those  created  by  her  supplemental 
answer  called  "  additional "  issues.  The  defendant,  feeling  her- 
self aggrieved  by  the  refusal  to  allow  a  proposed  issue,  invoked 
the  power  of  the  court  by  appeal,  and  was  advised  by  the 
general  term  that  the  order  of  disallowance  was  correctly 
made.  If  she  had  had  proper  ground  of  complaint  against  is- 
sues framed  by  herself  in  October  previous,  the  same  tribunal 
was  open  to  redress  error,  if  any  was  committed. 
The  order  must  be  affirmed. 

BAEBOUE,  J.,  dissented. 


ABBOTTS'  PRACTICE  REPORTS. 


The  People  v.  Strong. 


THE  PEOPLE  against  STRONG. 

New   York   General  Sessions;  July,  1865. 
MOTION  TO  QUASH  INDICTMENT. — POWERS  OF  GRAND  JURY, 

It  seems,  that  it  is  only  in  very  clear  cases  that  a  prisoner  should  be  allowed 
to  withdraw  his  plea  and  move  to  quash  the  indictment,  without  the  con- 
sent of  the  prosecuting  attorney. 

Although,  as  a  general  rule,  criminal  complaints  must  originate  in  the  police 
offices,  and  the  court  will,  on  motion,  relieve  against  an  indictment  if  it 
originated  with  the  grand  jury;  yet  where  the  interference  of  that  bqdyb 
necessary  to  prevent  the  statute  of  limitations  from  attaching,  the  indict- 
ment will  not  he  quashed  on  that  ground. 

It  makes  no  difference  in  such  a  case  that  the  prosecution  might  have  brought 
the  offence  to  the  knowledge  of  the  authorities  at  an  earlier  time. 

An  indictment  should  not  be  quashed  upon  the  ground  that  there  was  not 
sufficient  evidence  before  the  grand  jury,  if  there  was  before  them  testi- 
mony upon  which,  on  their  oaths,  they  could  fairly  act.  If  they  have 
some  evidence,  it  is  for  them  to  determine  its  weight. 

Of  the  powers  of  district  attorneys. 

Motion  to  quash  an  indictment. 

The  facts  of  the  case,  and  the  grounds  of  the  motion,  suffici- 
ently appear  in  the  opinion. 

Henry  A.  Cram,  for  the  motion. 
John  Graham,  for  the  people,  opposed. 

RUSSEL,  CITY  JUDGE. — The  defendants,  Peter  R.  Strong  and 
Electa  M.  Potter,  are  jointly  indicted  for  manslaughter  in  the 
second  degree,  in  killing  (as  charged)  the  child  with  which  one 
Mary  E.  Strong  was  quick,  by  the  use  of  instruments  inserted  to 
destroy  the  foetal  life  of  the  child.  The  indictment  contains 
four  counts,  diversified  to  meet  the  evidence  on  the  trial,  and 
appears  to  have  been  drawn  with  great  skill  and  care. 

The  defendants  pleaded  "  not  guilty  "  to  the  indictment,  and 
;thus  raised  an  issue  to  the  country.  The  defendant  Strong  de- 
siring, through  his  counsel,  to  make  a  motion  to  quash,  or  for 


NEW  SERIES;  VOL.  I.  245 

The  People  v.  Strong. 

other  relief,  the  district  attorney,  with  his  usual  fairness  and 
liberality,  consented  that  he  might  withdraw  his  plea  and  make 
his  motion.  "Without  such  a  consent,  he  would  have  had  to  ap- 
ply to  the  court  for  leave  to  withdraw  his  plea  and  make  the 
motion  ;  which  application,  under  the  practice  of  this  court,  must 
have  rested  upon  the  strongest  grounds,  and  would  by  no  means  have 
been  granted  as  a  matter  of  course.  The  liberality  of  the  prose- 
cuting officer  serves  to  show,  in  answer  to  the  intimations  of  the 
counsel  for  this  defendant  to  the  contrary,  that  he  means  to  pur- 
sue the  even  tenor  of  his  way  in  this  as  in  other  cases,  and  that 
he  has  no  other  motive  for  his  official  conduct  than  the  perform- 
ance of  public  duty.  The  moving  papers  are  quite  voluminous, 
but  the  substance  of  them  is  this : — That  Mary  E.  Strong  is  the 
defendant's  wife;  that  h#  has  brought  an  action  for  divorce 
against  her,  now  pending  and  ready  for  trial  in  the  Superior 
Court  of  this  city ;  that  he  desires  to  be  tried  upon  this  indictment 
before  that  trial  takes  place  ;  that  Mrs.  Potter  (his  co-defendant) 
is  a  witness  for  him  on  that  trial,  to  repel  the  charge  of  adultery 
brought  against  him  by  his  wife,  in  connection  with  that  female ; 
that  this  is  a  malicious  prosecution  against  him  and  his  witness, 
designed  to  aid  the  defence  of  the  action  for  divorce ;  that  his 
wife's  relatives  have  resorted  to  it  with  that  view  ;  that  he  has 
demanded  of  the  district  attorney  an  immediate  trial  upon  this 
charge,  and  that  the  district  attorney  has  avowed  an  intention  to 
try  Mrs.  Potter  first,  and,  should  she  not  be  convicted,  to  use  her 
as  State's  evidence  against  him.  The  district  attorney  has  intro- 
duced no  affidavit  in  his  own  vindication  ;  and  very  properly,  I 
think.  His  official  oath  ought  to  be  regarded  as  a  denial,  under 
oath,  of  all  accusations  against  him,  unless  improper  conduct  is 
brought  home  to  him  by  the  plainest  facts ;  nothing  of  the  kind 
appears  here.  The  counsel  who  argued  against  the  present  mo- 
tion on  the  part  of  the  people,  offered  the  following  matters  of 
fact  in  opposition  to  the  moving  papers : — First,  That  the  dis- 
trict attorney  had  endeavored  to  bring  on  the  trial  of  Mrs.  Pot- 
ter, but  that  it  had  been  postponed  by  the  court,  notwithstand- 
ing his  resistance,  for  reasons  satisfying  the  practice  of  the 
court ;  and  secondly,  That  this  indictment  did  not  stand  in  the 
way  of  the  defendant's  trying  his  action  for  a  divorce,  as  he  him- 
self considered,  for  that,  since  his  present  motion  was  noticed, 
his  counsel  had  made  a  vigorous  effort  to  force  on  that  trial. 
If  the  district  attorney  had  determined  to  try  Mrs.  Potter 


246  ABBOTTS'  PEACTICE  KEPOKTS. 

The  People  v.  Strong. 

first,  he  certainly  has  been  guilty  of  no  delay  towards  the  de- 
fendant Strong  in  that  particular.  It  may  be  said  to  be  con- 
ceded that  the  blame  is  not  his,  that  she  has  not  been  tried ;  for 
the  facts  relied  upon  by  the  prosecution,  as  to  that  branch  of 
the  matter,  are  not  contradicted  on  this  motion. 

The  present  application  has  two  aspects ;  First,  as  a  motion  to 
quash  the  indictment ;  Second,  should  that  relief  be  denied,  as  a 
motion  to  the  court  to  control  the  public  prosecutor  as  to  the 
time  of  trying  the  indictment  as  against  the  defendant  Strong. 
The  motion  to  quash  is  urged  upon  two  grounds :  First,  that  the 
indictment  was  found  without  a  previous  complaint  in  the  po- 
lice office  ;  Second,  that  there  was  not  sufficient  evidence  before 
the  grand  jury  to  warrant  it. 

As  to  the  first  of  the  grounds  of  the  motion  to  quash  (which 
has  been  submitted  as  a  supplemental  point  in  writing  by  the 
defendant's  counsel,  and  was  not  distinctly  taken  upon  the  argu- 
ment), this  court,  so  far  as  I  am  concerned, — for  I  do  not  under- 
stand that  my  associate  in  this  court  concurs  with  me  in  my 
judgments  as  to  the  power  of  the  court  over,  and  its  duty  to  im- 
pose proper  restraints  upon,  grand  juries, — has  decided  that 
criminal  complaints  ought  properly  to  originate  in  the  police 
offices ;  and  that  where  they  originate  with  the  grand  jury,  as  a 
general  thing,  relief  will  be  granted  against  the  indictment  upon 
motion — unless  where  the  interference  of  that  body  is  requisite 
to  prevent  the  statute  of  limitations  attaching,  or  where  the  ac- 
cused resides  out  of  the  State,  and  a  requisition  from  the 
governor  has  to  be  issued  to  bring  him  within  the  jurisdiction 
of  our  courts.  From  the  facts  testified  to  before  the  grand 
jury  by  the  midwife  in  this  case,  the  present  offense  (if  it  ever 
was  committed)  must  have  been  committed  before  or  on  March 
5th,  1862 ;  and  from  the  fact  of  the  grand  jury  finding  the  in- 
dictment with  such  deliberation  and  apparent  reluctance  (for  it 
was  under  consideration  three  times  before  a  bill  was  ordered, 
as  the  moving  papers  show),  it  is  evident  that  it  would  not  have 
been  proper  to  have  postponed  the  submission  of  the  matter  to 
the  indicting,  body  longer  than  the  last  February  term  of  this 
court,  even  though  there  might  have  been  some  days  left  in  the 
March  term,  during  which  the  grand  jury  for  that  term  could 
have  acted  upon  the  complaint.  JIad  this  matter  beqn  reserved 
for  the  grand  jury  of  the  last  March  term  of  this  court,  however, 
the  statute  of  limitations  must  have  barred  it  altogether ;  for 


NEW  SERIES ;  VOL.  I.  247 

The  People  v.  Strong. 

that  commenced  on  Monday,  March  6th,  1865,  and,  allowing 
for  a  delay  of  several  days  in  impannelling  a  grand  jury  (which 
is  very  frequently  the  case),  the  three  years  within  which  the 
indictment  must  have  been  found,  if  at  all,  would  have  been  ex- 
ceeded several  days.  In  speaking  of  three  years  from  March 
6th,  1862,  as  the  period  within  which  the  indictment  would 
have  to  be  found,  it  is  assumed  (for  the  moving  papers  state  no- 
thing to  the  contrary)  that  the  defendant,  Strong,  has,  all  that 
time,  been  usually  resident  in  this  State.  Our  statute  requires 
all  indictments  (unless  in  cases  of  murder)  to  be  found  and  filed 
in  the  proper  court  within  three  years  after  the  commission  of 
the  offense,  but  the  time  during  which  the  defendant  shall  not 
have  been  an  inhabitant  of,  or  usually  resident  within,  this 
State,  forms  no  part  of  the  limitation  of  three  years  (3  Rev. 
Stat.,  5th  ed.,  1017,  §  37).  Even  if  there  had  been  a  few  days 
of  the  March  term  of  the  court  left  for  the  action  of  the  grand 
jury  upon  the  present  complaint,  the  defendant,  had  he  been 
indicted  under  those  circumstances,  might  well  have  complained 
that  the  matter  was  offered  to  that  body  at  so  late  a  day  as  to 
deprive  them  of  the  opportunity  for  deliberation.  Under  the 
present  circumstances,  the  complaint  was  submitted  to  the  in- 
dicting body  as  late  as  it  should  have  been.  Should  it  be  said 
that  it  was  the  fault  of  the  prosecution  that  the  alleged  offense 
was  not  brought  to  the  knowledge  of  the  authorities  sooner — the 
answer  to  that  is,  that  an  offense  is  public  property,  and  that 
the  law  has  prescribed  the  time  for  which  the  right  to  prosecute 
it  shall  remain.  Delay  in  bringing  it  forward  is  a  strong  dis- 
crediting circumstance  against  the  verity  of  the  charge,  and  a 
very  proper  subject  for  the  grand  jury  to  be  satisfied  upon  be- 
fore they  indict.  No  doubt,  in  this  instance,  the  indicting 
body  weighed  this  circumstance,  and  the  scruples  it  occasioned 
in  their  minds  may  have  caused  the  embarrassment  or  reluctance 
which  seems  (from  the  moving  papers)  to  have  characterized 
their  action,  and  induced  them  to  make  a  demand  twice  for  ad- 
ditional evidence. 

In  relation  to  the  second  ground  of  the  motion  to  quash,  that 
there  was  not  sufficient  evidence  before  the  grand  jury  to  war- 
rant the  indictment,  the  court  has  no  doubt  it  should  be  over- 
ruled. In  saying  that,  I  do  not  mean  to  intimate  that  there  was 
sufficient  evidence  before  that  body,  unexplained  and  uncontra- 
dicted,  to  justify  the  defendant's  convictions,  or  to  express  any 


248  ABBOTTS'  PRACTICE   REPORTS. 

The  People  v.  Strong. 

judgment  upon  the  strength  of  the  evidence.  There  was  testi- 
mony before  that  body  going  to  the  whole  case,  bearing  upon 
every  essential  part  of  the  charge,  and  under  the  constitution 
and  laws  of  this  State,  under  their  oaths,  its  members  were  to 
pass  upon  the  weight  and  effect  of  that  testimony.  The  reason- 
ing of  the  counsel  for  the  prosecution  upon  this  point  is,  to  my 
mind,  irresistible  and  unanswerable.  To  discipline  the  grand 
jury  is  one  thing.  To  keep  them  within  their  constitutional 
and  lawful  limits  is  the  duty  and  right  of  the  court ;  but  when 
they  have  testimony  before  them  upon  which  their  oaths  can 
fairly  act,  to  tell  them  how  much  testimony  they  must  have  up- 
on a  given  point,  or  what  result  they  shall  declare  from  testi- 
mony before  them,  would  be  (to  use  the  language  of  the  counsel 
for  the  prosecution)  to  obliterate  or  wipe  them  out  as  a  separate 
arid  independent  judicial  institution.  Such  a  doctrine  as  is  con- 
tended for  in  favor  of  this  motion,  in  effect  would  make  this 
court  both  the  indicting  and  trying  body.  It  is  unnecessary  to 
refer  to  the  authorities  which  I  have  examined  in  coming  to 
this  conclusion.  Since  I  have  been  upon  the  bench  of  this 
court,  many  motions  of  this  description  have  been  made  and 
argued  before  me,  and  I  have  uniformly  granted  relief  against 
the  action  of  the  indicting  body  where  it  has  been  unlawful  or 
oppressive,  or  where  the  ends  of  justice  would  be  prevented  by 
allowing  it  to  stand.  The  principle  of  these  decisions  did  not 
affect  the  separate  existence  or  independence  of  that  body,  when 
acting  in  the  discharge  of  their  legitimate  duties.  To  say  to 
that  body  that  it  must  have  competent  lawful  testimony  before 
it  indicts,  or  that  it  must  not  interfere  with  a  complaint  under- 
going examination  in  a  police  office,  or  that  the  requisite  number 
must  be  present  when  a  bill  is  ordered,  or  that  the  statutory 
number  must  concur  in  finding  a  bill,  otherwise  its  presentment 
will  be  set  aside,  is  very  different  from  saying  to  it,  where  it  has 
evidence  before  it  reaching  the  whole  case,  the  legality  or  com- 
petency of  which  is  not  denied,  that  it  had  no  right  to  believe 
a  certain  witness,  or  that  it  ought  to  have  demanded  more  testi- 
mony on  a  given  point,  and,  hence,  that  its  finding  shall  be 
vacated.  The  former  class  of  decisions  merely  announces  to  the 
indicting  body,  that  whenever  the  law  has  given  it  a  rule  of  ac- 
tion, the  law  must  be  observed.  The  latter  class  would  dictate 
to  it  how  it  shall  redeem  its  oath  in  a  matter  appertaining  to 
the  consciences  of  its  members.  The  only  authority  cited  upon 


NEW  SEKIES;  VOL.  I.  249 

The  People  v.  Strong. 

the  argument  to  which  my  attention  had  not.  been  called  on 
previous  occasions  of  this  kind,  was  The  United  States  v.  Reed, 
(2  jBlatchf.,  435),  which  appears  to  sustain  fully  my  conclusion. 

The  principal  authorities  bearing  upon  the  right  or  duty  of 
the  court,  over  or  in  reference  to  grand  juries,  were  reviewed  by 
me  in  an  opinion  filed  in  this  court  at  the  June  term,  1864,  in 
The  People  v.  Dederick  and  others,  where  the  counsel,  who 
argued  against  the  present  motion  on  the  part  of  the  prosecu- 
tion, argued  a  motion  to  quash  an  indictment,  which  w as  granted 
upon  grounds  involving  a  very  full  consideration  of  the  law  on 
this  subject.  The  learned  counsel  for  the  defendant  has,  since 
the  argument,  referred  me  to  a  manuscript  report  of  a  case  in  the 
Court  of  General  Sessions  of  Dutchess  county— The  People  v. 
Levy — in  which  the  opinion  was  pronounced  by  WH  EATON, 
County  Judge,  upon  a  motion  to  quash  for  want  of  proof  before 
the  grand  jury,  of  the  corpus  delicti.  The  decision  granting 
the  motion  was  merely  an  adoption  of  the  principle  of  The  Peo- 
ple v.  Restenblatt  (1  Abb.  Pr.,  268),  which  holds  that  the  grand 
jury  cannot  indict  without  having  some  evidence  to  show  the 
commission  of  an  offense.  That  principle  does  not  touch  the 
present  application,  for  here  the  grand  jury  had  some  evidence 
as  to  the  commission  of  the  offense,  and  under  their  oaths  they 
were  to  judge  of  its  weight  and  effect.  In  reference  to  the  other 
branch  of  the  present  application  to  the  court — to  control  the 
district  attorney  as  to  the  time  of  trying  the  indictment  against 
the  defendant  Strong — there  can  be  no  doubt  of  the  power  of 
the  court  to  interfere,  in  a  proper  case,  for  the  protection  of  the 
rights  of  the  accused. 

In  The  People  v.  Mclntyre  (1  Park.  Cr.,  371),  the  court  say: 
"  It  was  a  matter  addressed  to  the  sound  discretion  of  the  court 
below,  whether  they  would  interfere  with  the  order  of  trial  of 
the  persons  indicted.  The  statute  secures  to  persons  jointly  in- 
dicted for  a  felony,  the  right  of  separate  trials,  but  does  not  give 
to  them  the  right  to  regulate  the  time  or  order  of  such  trials. 
The  public  prosecutor  controls  and  directs  on  these  matters,  sub- 
ject to  the  directions  of  the  court  in  cases  calling  for  inter- 
ference. It  cannot  be  assumed  by  any  court,  and  certainly  not 
by  a  court  of  review,  that  the  grand  jury  have  found  an  indict- 
ment without  sufficient  evidence  or  from  improper  motives,  or 
that  the  public  prosecutor  has  unworthily  procured  an  indict- 
ment against  an  innocent  individual,  and  delays  the  trial  in  or- 


250  ABBOTTS'  PKACTICE  REPORTS. 

Wilcox  v.  Lee. 

der  to  deprive  another  person  indicted  for  the  same  offense  of 
the  benefit  of  his  testimony.  If  a  case  of  that  kind  should  be 
brought  to  the  knowledge  of  the  court,  it  cannot  be  doubted 
that  measures  would  be  taken  to  secure  to  the  persons  indicted 
their  just  rights'  and  fair  trials." 

In  that  case  (which  was  a  charge  of  felony)  the  defendants  de- 
manded separate  trials,  and  a  motion  was  made  in  the  court 
below  that  the  court  direct  the  district  attorney  to  try  the  co- 
defendant  of  the  party,  in  whose  behalf  the  motion  was  made, 
first,  which  was  refused.  The  duties  of  the  district  attorney's 
office  are  sufficiently  responsible  and  onerous  without  being  per- 
plexed by  any  unwarrantable  interference  from  any  quarter.  In 
this  county  his  office  is  one  of  very  great  trust,  and  it  never  has 
been  filled  by  a  gentleman  more  faithful  to  all  its  requirements 
than  its  present  incumbent.  Nothing  appears  to  justify  the 
court  in  questioning  his  motives  or  conduct  in  any  manner,  or  in 
withdrawing  from  him  his  acknowledged  rights  over  all  criminal 
prosecutions.  There  is  nothing  unusual  in  his  course  or  man- 
agement, as  exhibited  by  the  moving  papers ;  and,  had  the 
learned  counsel  been  more  familiar  with  the  powers,  duties  and 
usages  of  that  office,  than  he  claimed  to  be  in  his  argument,  he 
no  doubt  would  have  been  restrained  from  the  reflections  upon 
the  prosecuting  officer  in  which  he  indulged. 

The  motion  is  denied  in  both  aspects  of  it,  and  upon  all 
the  grounds  upon  which  it  was  urged,  and  the  clerk  will  enter 
an  order  to  that  effect. 


WILCOX  against  LEE. 

New  York  Superior  Court;  General  Term,  November,  1863. 
FORMER  ADJUDICATION.  . 

A  judgment  in  favor  of  the  defendants,  in  an  action  to  recover  the  price  of 
goods  sold,  which  proceeded  upon  the  ground  that  they  were  sold  on  a 
credit  which  had  not  expired  when  the  action  was  brought,  is  not  a  bar 
to  a  second  action  brought  after  the  credit  has  expired. 


NEW  SEKIES  ;  YOL.  I.  251 

Wilcox  v.  Lee. 

Where  such  judgment  does  not  affirmatively  disclose  the  ground  upon  which 
it  proceeded,  but  there  waj3  uncoutradicted  proof  of  such  unexpired  credit, 
and  the  existence  of  such  credit  was  the  only  question  argued  on  sub- 
mitting the  case,  it  will  be  inferred  that  the  judgment  proceeded  solely 
on  that  ground,  although  evidence  in  support  of  another  defence  was 
given  on  the  trial. 

This  was  a  motion  by  the  defendants  for  a  new  trial,  on 
exceptions  taken  at  the  trial,  and  there  ordered  to  be  heard 
at  general  term  in  the  first  instance. 

The  action  was  brought  by  Horatio  R.  Wilcox  and  Joshua 
Draper,  for  goods  sold  and  delivered  in  March,  1861,  to  a  firm 
composed  of  the  defendants  and  one  George  A.  Dunlap,  at  the 
agreed  price  of  four  hundred  and  fifty  dollars,  on  eight  months' 
credit.  The  defendants  were  Uriah  M.  Lee,  Charles  P.  H.  Rip- 
ley,  and  Charles  M.  Hoyt.  The  defendants  Ripley  and  Hoyt,  in 
their  answer,  set  up  a  former  trial  in  the  Marine  Court,  in  July, 
1861,  for  the  same  cause  of  action,  in  a  suit  by  these  plaintiffs 
against  these  defendants  and  said  Dunlap,  and  allege  in  their  an- 
swer that  "judgment  therein  was  rendered  in  favor  of  the  de- 
fendants, on  a  question  of  fact,  on  the  24th  of  July,  1861.  The 
sale  and  delivery  of  the  goods  in  March,  1861,  to  the  defend- 
ants at  the  agreed  price  of  four  hundred  and  fifty  dollars,  on 
a  credit  of  eight  months,  was  fully  proved  on  the  present  trial. 
The  defendants  then  proved  that  in  July,  1861,  these  plaintiffs 
sued  these  defendants  and  Dunlap  in  the  Marine  Court,  and 
in  their  complaint  claimed  to  recover  for  goods  sold  and  de- 
livered to  such  defendants  in  March,  1861,  at  the  agreed  price 
of  four  hundred  and  fifty  dollars.  The  complaint  in  that 
action  did  not  state  whether  the  goods  were  or  were  not  sold 
on  a  credit,  but  it  alleged  that  the  four  hundred  and  fifty  dol- 
lars was  due,  with  interest  from  April  1,  1861,  and  prayed 
judgment  accordingly. 

The  answer  of  Ripley  and  Hoyt  in  that  suit  denied  each 
and  every  allegation  in  the  complaint. 

It  was  proved  on  the  trial  of  this  action  that,  on  the  trial  in 
the  Marine  Court, -evidence  was  given  of  the  sale  and  delivery 
of  the  goods,  and  that  they  were  sold  on  a  credit  of  eight 
months.  George  B.  Bonta,  the  person  who  made  the  sale, 
was  asked,  with  reference  to  his  testimony  on  the  former  trial, 
thus :  "  Q.  Did  you  not  testify  that  the  sale  was  a  cash  sale, 


252  ABBOTTS'  PKACTICE  REPORTS. 

Wilcox  v.  Lee. 

"  and  you  applied  to  them  for  a  note,  according  to  the  custom 
"  of  that  kind  of  sale  ? 

"  A.  I  asked  for  a  note  ;  it  was  not  given  ;  it  was  then  con-1 
"  sidered  a  cash  sale,  according  to  the  custom  of  merchants." 

It  was  also  proved  that  a  question  raised  and  argued  in 
the  Marine  Court  was,  whether  the  goods  were  sold  on  a  credit 
of  eight  months,  and  that  this  was  the  only  question  argued 
on  submitting  the  case. 

The  judge  who  tried  the  cause,  testified  that  he  did  not 
recollect  on  what  ground  he  decided  it,  "whether  on  the 
ground  of  unexpired  credit,  or  on  the  ground  that  the  sale  was 
made  by  Bonta  individually.  The  defendants  sought  to  prove 
that  Bonta  sold  the  goods  in  his  own  name,  and  on  his  own 
account.  No  judgment  was  entered  in  the  docket  in  the  Ma- 
rine Court,  but  there  was  indorsed  on  the  summons  and  com- 
plaint, in  the  handwriting  of  the  judge,  the  words — "  Judg- 
ment for  defendants,  with  costs  and  ten  dollars  allowance." 
On  the  present  trial,  the  judge  ordered  a  verdict  for  the  plain- 
tiffs for  four  hundred  and  eighty-one  dollars  and  fifty  cents, 
the  amount  of  the  goods  and  interest ;  and  the  defendants  ex- 
cepted  to  the  decision. 

L.  S.  Chatfield,  for  defendants. — I.  The  former  trial  and  de- 
cision was  a  full  and  complete  bar  to  this  action.  The  parties 
were  the  same,  the  pleadings  the  same,  the  cause  of  action  the 
same,  the  evidence  the  same  ;  and  the  cause  was  finally  sub- 
mitted on  the  merits,  and  decided  by  the  court  (McGuinty  v. 
Herrick,  5  Wend.,  244 ;  Bockway  v.  Kinney,  2  Johns.,  210 ;  Rice 
v.  King,  7  Johns.,  20  ;  Thomas  v.  Rumsey,  6  Johns.,  26  :  Johnson 
v.  Smith,  S  Johns.,  383;  Platner  v.  Best,  11  Johns.,  530;  15 
Johns.,  432 ;  Phillips  v.  Berick,  16  Johns.,  136 ;  Gardner  v.  Buck- 
bee,  3  Cow.,  120 ;  Coles  v.  Carter,  6  Cow.,  691 ;  Morgan  y. 
Plumb,  9  Wend.,  287). 

II.  The  record  was  conclusive,  and  could  not  be  varied  by 
parole.    The  record  of  the  former  trial  was  complete,  and  estab- 
lished a  sufficient  bar  (Suttcn  v.  Dillaye,  3  Barb. ,  529  ;  Noyes 
v.  Butler,  6  Barb.,  613  ;  Foster  v.  Trull,  12  Johns.,  456  ;  Brush 
v.  Taggart,  7  Johns.,  19). 

III.  There  is  no  force  in  the  objection  that  the  judgment 
was  not  docketed.     If  the  cause  is  finally  submitted  to  the 
court  it  is  enough,  whether  it  is  decided  or  not — but  here  it 


NEW  SERIES  ;  VOL.   I.  253 

Wilcox  v.  Lee. 

was  decided  (Felter  v.  Mulliner,  2  Johns.,  181 ;  Burt  -y.  Stem- 
burgh,  4:  Cow.,  559). 

IV.  The  grounds  of  decision  were  not  inquirable  into.  The 
causo  was  submitted  on  the  merits,  and  it  is  not  material  on 
what  ground  the  judge  decided.  The  judgment,  as  entered, 
was,  "judgment  for  defendants,  with  costs,  and  ten  dollars 
allowance,"  and  was  not  a  non-suit  or  dismissal. 

Y.  The  action  could  not  be  maintained  against  these  de- 
fendants. Hoyt  was  not  a  member  of  the  firm  when  the  goods 
were  sold,  and  no  notice  of  dissolution  to  "Wilcox  and  Draper, 
was  necessary. 

Gilbert  Dean,  for  plaintiffs. — I.  Where  a  former  judgment  is 
set  up  as  a  defence,  parole  evidence  is  admissible  to  show  what 
was  actually  in  controversy  between  the  parties,  and  the 
grounds  npon  which  the  judgment  was  rendered  (Doty  v. 
Brown,  4  N.  T.  [4  <7<wisz5.],  Vl ;  8  Wend.,  9  ;  4  Barb.,  457;  36 
Barb.,  95). 

II.  The  decision  of  the  Marine  Court,  ordering  judgment 
for  defendants,  was  therefore  merely  a  judgment  of  non-suit, 
and  no  bar  to  this  action. 

III.  The  judge  who  tried  this  cause  properly  ordered  judg- 
ment for  plaintiffs,  as  there  was  no  disputed  question  of  fact, 
But  it'  there  were,  the  defendant  should  have  specifically  ex- 
cepted,  or  requested  him  to  submit  the  question  to  the  jury. 

BY  THE  COURT. — BOSWOETH,  CH.  J. — The  defendants  have 
had  the  goods  for  which  the  verdict  was  ordered,  and  have  not 
paid  for  them.  The  question  now  is,  whether  the  former  trial 
and  judgment  are  a  bar  to  a  recovery  in  this  action.  It  is  quite 
clear  that  on  the  trial  in  the  Marine  Court,  as  in  this,  the  evi- 
dence of  the  sale  of  the  goods,  at  the  agreed  price  of  four  hun- 
dred and  fifty  dollars,  on  a  credit  of  eight  months,  was  uncon- 
tradicted.  The  evidence  on  this  trial  shows  that,  in  the  suit  in 
the  Marine  Court,  Bonta  testified  that  he  sold  the  goods  as 
agent  of  the  plaintiff,  and  so  informed  the  defendants  at  the 
time  of  the  sale.  It  does  not  appear  that  there  was  any  attempt 
to  contradict  him,  and  no  evidence  in  conflict  with  such  being 
the  facts  was  given  on  this  trial. 

The  case  comes,  therefore,  to  this  point.  Judgment  was  given 
for  the  defendants  in  the  Marine  Court,  on  uncontradicted  proof 


254  ABBOTTS'  PRACTICE  REPORTS. 

. 

Wilcox  v.  Lee. 

that  the  sale  was  on  a  credit  of  eight  months,  which  had  not 
elapsed.  It  cannot  be  conjectured  that  it  proceeded  on  any 
other  ground  or  fact.  On  what  ground,  or  fact  found,  the  judge 
decided  it,  he  does  not  recollect,  and  I  lay  his  testimony  out  of 
view.  But  it  does  appear  that  the  only  question  discussed  be- 
fore him  on  the  close  of  the  evidence  was,  whether  the  credit 
had  expired.  I  think  it  should  be  inferred  that  this  was  the 
only  question  of  fact  which  he  determined  adversely  to  the 
plaintiffs,  and  finding  that  it  had  not,  and  it  being  his  duty  to  so 
find,  he  gave  judgment  for  the  defendants  on  that  ground,  and 
for  that  cause. 

If  this  be  the  correct  view,  then  it  is  clear  that  it  was  not  de- 
termined in  the  Marine  Court,  that  the  plaintiffs  did  not  sell 
and  deliver  the  goods  at  the  agreed  price  of  four  hundred  and 
fifty  dollars. 

If  it  had  affirmatively  appeared  on  the  present  trial,  that  the 
judgment  in  the  Marine  Court  was  given  expressly  on  the 
ground  that  the  suit  was  prematurely  brought,  then  Quacken- 
bush  v..Ehle  (5  Barb.,  469-472)  would  be  an  authority  that  the 
former  trial  and  judgment  was  not  a  bar.  In  the  present  case, 
the  contrary  does  not  appear,  either  by  the  record  or  the  proofs ; 
and  presumptively,  the  first  judgment  could  not  have  proceeded 
on  any  other  grounds. 

Quackenbush  v.  Ehle  is  not  in  conflict  with  Morgan  v.  Plum 
(9  -Wend.,  287-317).  In  the  latter  case,  the  plaintiff  was  .en- 
titled to  recover  upon  the  evidence  given.  But  judgment  was 
given  against  him,  contrary  to  the  law  and  the  evidence.  His 
remedy  was  a  review  on  a  case  or  exceptions ;  and  not  by 
another  suit  on  the  same  evidence. 

It  cannot  be  affirmed,  or  established  inferentially,  that  the 
judgment  in  the  Marine  Court  determined  any  fact,  except  the 
fact  that  that  suit  was  brought  before  the  agreed  term  of  credit 
had  expired.  As  it  does  not  appear  that  any  other  fact  was  de- 
termined, and  as  that  fact  was  undisputed,  and  entitled  the  de- 
fendants to  judgment,  and  as  presumptively  no  other  fact  could 
have  been  determined  in  their  favor,  I  think  the  former  suit  and 
judgment  do  not  bar  this  action. 

The  facts  that  the  plaintiffs  sold  the  goods  to  the  defendants 
at  the  agreed  price  of  four  hundred  and  fifty  dollars,  and  that 
the  defendants  have  not  paid  any  part  thereof,  have  not  been 
passed  upon  and  decided  against  the  plaintiffs.  But  a  fact  con- 


NEW  SEEIES;  VOL.  I.  255 

Manice  v.  Gould. 

sistcnt  with  them,  and  found  on  the  first  trial  by  uncontradicted 
dvidence,  viz. :  that  the  goods  were  sold  on  a  credit  of  eight 
months,  was  found  in  the  Marine  Court,  and  having  been  found, 
the  defendants  had  judgment. 

Holding  that  such  a  judgment  is  not  a  bar  to  this  action,  does 
not  conflict  with  the  rule  that  "  a  fact  which  has  once  been  di- 
rectly decided  shall  not  be  again  disputed  between  the  same 
parties ;"  nor  with  the  rule  that "  the  judgment  of  a  court  of  con- 
current jurisdiction  directly  on  the  point,  is  a  plea  or  bar,  and 
as  evidence,  conclusive  between  the  same  parties  upon  the  same 
matter  directly  in  question  in  another  court  "  (Jackson  v.  Wood, 
8  Wend.,  9 ;  Doty  v.  Brown,  4  N.  Y.  [4  Comst.~\,  71). 

I  think  the  motion  for  a  new  trial  should  be  denied,  and  judg- 
ment for  plaintiffs  on  the  verdict,  ordered. 


MANICE  against  GOULD. 

Supreme  Court,  First  District ;  Special  Term,  February,  1866. 
ATTACHMENT. — APPEARANCE. 

Defendant  may  move  to  set  aside  an  attachment  against  his  property  with- 
out putting  in  a  general  appearance  in  the  action. 

Motion  to  discharge  an  attachment. 

The  plaintiffs,  William  D.  F.  Manice  and  Benjamin  C.  Wet- 
more,  sued  as  executors,  and  upon  an  affidavit  that  the  defend- 
ant, Mary  E.  Gould,  was  a  non-resident,  having  property  with- 
in the  State,  obtained  an  attachment  against  her  property. 

She  now  moved  to  set  aside  the  attachment,  upon  the  orig- 
inal papers  on  which  it  was  obtained.  She  did  not  appear 
generally,  in  the  action,  but  only  for  the  purposes  of  the 
motion. 

Brown,  Hall  &  Vanderpoel,  for  the  plaintiffs,  objected  that 
defendant  could  not  move  till  after  she  had  appeared  in  the 
action. 


256  ABBOTTS'  PRACTICE  REPORTS. 


Manice  v.  Gould. 


Flamen  B.  Candler  and  Edgar  S.  Van  Winkle,  for  the  motion. 
— I.  The  defendant  may,  after  appearance,  move  to  discharge 
the  attachment  (§  240),  but  he  may  in  all  cases  move  to  dis- 
charge it,  as  in  the  case  of  other  provisional  remedies  (§  241). 
The  larger  license  controls  the  smaller.  Since  a  non-resi- 
dent cannot  appear  in  person,  he  can  through  an  attorney  act 
in  those  cases  where  personally  he  could  without  an  appear- 
ance move  to  discharge  any  process. 

When  it  is  intended  to  remove  a  suit  from  a  State  court 
into  the  United  States  courts  on  account  of  jurisdiction,  a 
special  or  modified  appearance  is  allowed  (Field  v.  Blair,  1 
Code  £.  [N.  &],  292,  361 ;  Durand  v.  Holland,  3  Duer,  686). 

And  this  because,  otherwise,  as  a  voluntary  appearance  would 
be  a  waiver  of  objection  to  the  jurisdiction,  the  steps  taken  to 
protect  his  rights  would  forfeit  them. 

A  voluntary  and  general  appearance,  besides  being  equiva- 
lent to  a  personal  service  of  the  summons  (Code,  §  139)  is  a 
waiver  of  all  defects  in  the  summons  as  previous  proceedings 
(Webb  v.  Mott,  6  How.  Pr.y  439,  and  other  cases  cited  under 
§  139  in  Voorhies1  Code). 

If,  in  case  of  an  unauthorized  attachment  against  a  non-resi- 
dent, the  defendant  must  put  in  a  general  appearance  before 
he  can  move  to  discharge  it,  the  consequence  is,  that  the 
plaintiff  by  his  wrongful  act  compels  the  defendant  to  give 
the  court  jurisdiction  and  control  of  the  subsequent  proceed- 
ings, for  the  court  has  such  jurisdiction  and  control  from  the 
time  of  the  service  of  the  summons,  and  a  voluntary  ap- 
pearance is  equivalent  to  personal  service  of  the  summons. 

The  effect  will  be  that  although  the  attachment  may  be  set 
aside,  the  plaintiff  can  go  on  and  obtain  a  judgment  which  he 
is  not  entitled  to  ;  for  in  cases  of  service  of  summons  by  publi- 
cation he  can  only  take  judgment  against  a  non-appearing 
defendant,  for  the  property  originally  attached,  and  if  in  this 
case  he  has  no  right  to  an  attachment  he  could  have  no  judg- 
ment at  all,  except  through  the  appearance  of  the  defendant 
wrongfully  obtained. 

A  party  can  move  ex  parte  to  discharge  an  arrest,  or  to 
vacate  an  injunction,  or  to  reduce  bail :  arrest,  attachment, 
claim  and  delivery  are  all  provisional  remedies  (Code,  title 
VII,  part  2). 


NEW  SERIES ;  YOL.  I.  257 

Manice  v.  Gould. 

May  not  an  attorney  appear  as  amicus  curies  f 
As  in  case  of  other  provisional  remedies  (§  241),  a  defendant 
may  at  any  time  before  judgment  apply  on  motion  to  vacate 
the  order  of  arrest,  or  to  reduce  the  amount  (§  206). 

If  application  to  vacate  the  order  of  arrest  be  made  to  the 
judge  who  granted  the  order,  it  may  be  made  ex  parte  (Cay- 
uga  Bank  v.  Warfield,  13  How.  Pr.,  439,  also  to  vacate  an 
injunction  (Bruce  v.  Del.  &  H.  C.  Co.,  8  How.  Pr.,  440; 
Eogers  v.  McElhone,  12  All.  Pr.,  292 ;  20  How.  Pr.,  441 ; 
Dickinson  v.  Benham,  12  All.  Pr.,  158). 

II.  No  attachment  can  issue  against  a  non-resident,   except 
in  an  action  for  the  recovery  of  money  (Code,  §  227;  Shaffer  v. 
Mason,  18  Abb.  Pr.,  455.     See  also  Gordon  v.  Gaffey,  11  Abb. 
.Pr.,  1 ;  Wallace  v.  Hitchcock,  18  All.  Pr.,  291,  note  ;  Knoxv. 
Mason,  18  All.  Pr.,  290 ;  Kerr  v.  Mount,   28  2ST.    T.,  664 ; 
Ackroyd  v.  Ackroyd,  11  Abb.  Pr.,  345. 

III.  Where,  as  in  this  case,  the  motion  is  founded  solely  upon 
the  \veakness,  or  insufficiency  of  the  case  made  by  the  plain- 
tiffs on  their  application  to  the  judge  for  the  warrant,  the 
attachment  must  stand  or  fall  upon  the  facts  originally  pre- 
sented to  the  judge  upon  such  application,  and  no  new  or  fur- 
ther affidavits  can  be  introduced  (Hill  v.  Bond,  22  How.  Pr., 
272  ;  St.  Annant  v.  De  Beixcedon,  3  Sandf.  S.  Ct.,  703  ;  Mor- 
gan v.  Avery,  2  Code  E.,  92,  121). 

If  the  affidavit  is  insufficient,  the  attachment  must  be  set 
aside  (Dickinson  v.  Benham,  19  How.  Pr.,  410 ;  S.  0.,  12  Abb. 
Pr.,  158  ;  affirmed  18  Abb.  Pr.,  455 ;  Brewer  v.  Tucker,  13  Abb. 
Pr.,  76). 

IY.  The  affidavit  is  insufficient  in  this,  that  it  does  not  ap- 
pear thereby  that  a  cause  of  action  exists  against  the  defend- 
ant. It  is  only  stated  therein  that  the  plaintiffs,  as  executors, 
have  a  cause  of  action  against  the  defendant,  and  does  not 
state  that  the  will  has  been  proved  before,  or  letters  testa- 
mentary issued  to  plaintiffs,  by  a  surrogate  or  other  officer 
within  this  State,  authorized  to  take  such  proof,  or  issue  such 
letters  (Sheldon  v.  Hoy,  11  How.  Pr.,  11.  See  Wheeler  v. 
Dakin,  12  Id.,  537 ;  Bangs  v.  Mclntosh,  23  Barb.,  591 ;  Gillet 
v.  Fail-child,  4  Den.,  80 ;  White  v.  Low,  7  JSarb.,  204). 

Y.  The  affidavit  does  not  present  legal  proof,  to  wit,  foots  / 
but  only  a  conclusion  of  law. 
N.  S.— YOL.  I.— 17. 


258  ABBOTTS'  PRACTICE  REPORTS. 

Member  v.  Heydrich. 

CLEKKE,  J. — I  agree  with  the  counsel  of  the  defendant,  that 
the  provision  in  section  241  dispenses  with  the  requirement 
in  section  240. 

Motion  to  discharge  attachment  granted,  without  costs. 


MOSHER  against  HEYDRICH. 

Supreme  Court,  Second  District ;  Special  Term,  September, 

1865. 

CONFESSION  OF  JUDGMENT. — SIGNATURE. 

The  party's  subscription  to  the  affidavit  added  to  his  statement  for  judg- 
ment by  confession,  is  a  sufficient  signing  of  the  statement,  within  the 
provision  of  section  382  of  the  Code  of  Procedure  which  requires  the 
statement  to  be  "  signed  by  the  defendant,  and  verified  by  his  oath.  "# 

A  verification  in  terms  that  "  the  facts  stated  in  the  above  confession  are 
true/'  is  sufficient.! 

A  notary  public,  in  certifying  an  affidavit  need  not  add  the  place  of  his  resi- 
dence thereto,  to  show  that  the  venue  was  within  his  jurisdiction. 

The  statute  giving  notaries  power  to  certify  affidavits,  is  not  to  be  construed 
as  restricted  to  affidavits  in  actions  pending. 

A  judgment  upon  confession  may  be  entered  in  any  county,  without  restric- 
tion to  the  county  in  which  the  statement  was  verified. 

Motion  to  set  aside  a  judgment.  The  facts  sufficiently  ap- 
pear in  the  opinion. 

William  Henry  Arnoux,  for  the  motion. 
Hughes  &  Northrup,  opposed. 

LOTT,  J. — After  a  careful  examination  and  consideration  of 
the  argument  presented  in  the  able  and  elaborate  brief  of  the 
counsel  of  the  applicant,  and  urged  on  the  hearing  of  the 

*  As  to  the  necessity  of  signing  an  affidavit  see  Soule  v.  Chase,  Ante,  48, 
and  cases  there  cited, 
f  To  similar  effect  ie  Whelpley  v.  Van  Epps,  9  Paige,  332 


NEW   SERIES;  VOL.   I.  259 

Moeher  v.  Heydrich. 

motion,  I  am  unable  to  sustain  him  in  any  of  the  grounds  on 
which  he  asks  to  set  aside  the  judgment  of  Mosher  for  irregu- 
larity. 

The  first  assigned  is  that  the  statement  was  not  signed  by 
the  defendant.  This  objection  is  decided  against  him  in  the 
cases  of  Post  v.  Colemau  (9  How.  Pr.,  64) ;  and  Purdy  v.  Up- 
ton (10  How.  Pr.,  494),  and  I  see  no  reason  for  departing  from 
those  decisions.  The  case  of  Hathaway  v.  Scott  (11  Paige, 
173),  cited  by  him  is  not  in  conflict  with  either  of  them. 
There  the  name  of  the  petitioner  was  not  signed  to  the  peti- 
tion, nor  to  an  affidavit  verifying  it.  It  appears  from  the 
chancellor's  opinion,  and  the  statement  of  facts  preceding  it, 
that  the  only  evidence  of  the  verification  was  the  certificate 
of  the  officer  who  administered  the  oath  subjoined  to  the 
petition,  and  in  such  case  the  chancellor  eays  the  name  of 
deponent  should  be  subscribed  to  the  petition,  but  he  also 
says  that  "  when  the  verification  of  a  bill  or  petition  is  in  the 
form  of  an  affidavit,  the  name  of  the  defendant  must  be  sub- 
scribed at  the  foot  of  the  affidavit."  That  case  is  an  authority 
in  support  of,  rather  than  in  conflict  with  the  first  mentioned 
decisions.  The  affidavit  in  the  case  before  us  is  substantially 
an  allegation  forming  a  part  of  the  statement  preceding  it, 
stating  that  the  matters  before  stated  are  true,  and  being 
signed  by  the  party  making  it,  is  a  sufficient  compliance  with 
the  requirements  of  the  Code  in  that  respect. 

The  second  ground  of  objection  is  that  the  statement  was 
not  duly  verified  by  the  oath  of  the  defendant,  and  it  is  in- 
sisted that  the  allegation  in  the  affidavit,  "  that  the  facts  stated 
in  the  above  confession  are  true,"  is  not  a  verification  of  the 
statements  made  therein.  The  counsel  says  that  a  party  might 
as  well  say  "  that  the  lies  are  false.  It  is  an  axiom  that  nobody 
can  dispute,  the  facts  must  be  true."  I  do  not  construe  the 
terms  as  he  does.  The  affidavit  must  be  construed  in  connec- 
tion with  what  precedes  it.  The  confession  contains  several 
statements  of  different  matters,  not  merely  those  out  of  which 
the  indebtedness  arose,  but  the .  further  facts  that  he  made 
the  confession  of  the  debt,  and  authorized  the  entry  of  the 
judgment  therefor,  and  when  it  is  said  that  the  facts  stated  in 
the  above  confession  are  true  it  is  in  effect  that  the  statement 
is  true.  The  Code  authorizing  the  confession  provides  that 
the  statement  shall,  among  other  things,  state  concisely  the 


260  ABBOTTS'  PEACTICE  EEPOETS. 

Mosher  v.  Heydrich. 

facts  constituting  the  debt  or  liability,  and  evidently  in  the 
use  of  that  word  refers  to  the  matters  and  circumstances  on 
which  such  debt  or  liability  is  founded,  and  does  not  admit 
of  the  narrow  construction  put  on  it  by  the  counsel.  In  the 
case  of  Fitzhugh  v.  Truax  (1  Hill,  644),  cited  by  the  counsel, 
the  words  used  in  the  affidavit  of  the  merits  were  "  that  he 
has  fully  and  fairly  stated  the  facts  of  his  case,"  and  not  as 
stated  by  him,  "  the  facts  of  the  case  "  instead  of  "  the  case," 
showing  that  only  on  one  side  of  the  controversy  had  he  been 
advised  by  counsel. 

The  third  ground  of  objection  is  that  the  verification  was 
not  made  before  an  officer  of  competent  jurisdiction.  The 
affidavit  appears  to  have  been  made  before  a  notary  public,  in 
May,  1865,  and  the  venue  is  the  city  and  county  of  New  York, 
and  it  is  insisted  by  counsel  that  it  was  necessary  for  him  to 
add  to  his  name  his  place  of  residence,  so  as  to  show  his  juris- 
diction to  act.  By  chapter  508  of  the  laws  of  1863,  notaries 
public  were  authorized  to  take  affidavits  and  certify  the  same 
in  all  cases  where  justices  of  the  peace  or  commissioners  of 
deeds  might,  at  the  time  of  passage  of  the  Act,  take  and  cer- 
tify the  same.  Assuming  that  said  affidavit  should  only  be 
taken  in  the  county  where  the  notary  resided,  or  in  which  he 
was  appointed,  there  is  nothing  to  show  that  it  was  taken  out 
of  his  jurisdiction;  the  presumption  is  that  he  acted  where 
the  venue  of  the  affidavit  is  laid,  and  that  he  resided  there. 
It  is  conceded  by  the  counsel  that  such  a  presumption  arises 
in  reference  to  a  commissioner  of  deeds,  without  adding  to  his 
signature  his  place  of  residence,  because,  he  says,  that  beyond 
his  county  he  ceases  to  exist ;  but  he  contends  that  the  case  is 
different  with  a  notary,  who,  it  is  claimed,  is  a  State  officer, 
and,  therefore,  when  he  attempts  to  act  as  a  commissioner,  his 
right  must  affirmatively  appear  by  adding  after  his  name  of 
office  that  he  resides  in  the  city  of  New  York,  or  words  eqmV 
alent  thereto.  I  am  unable  to  appreciate  the  force  of  the  dis- 
tinction. It  would  seem  to  be  a  sufficient  answer  to  the  position 
contended  for,  that  the  notary,  in  taking  an  affidavit,  does  not 
attempt  to  act  as  a  commissioner ;  lie  acts  by  virtue  of  his  ap- 
pointment, and  may  take  affidavits  in  all  cases  where  commis- 
sioners of  deeds  could  take  the  same  at  the  time  of  the  passage 
of  the  Act  referred  to,  and  if  he  is  a  State  officer  it  is  by  no 
means  clear  that  he  cannot  in  eyery  part  of  the  State  (see  1 


NEW  SERIES ;  VOL.  I.  261 

Mosher  v.  Heydrich. 

Rev.  Stat.,  112,  314) ;  but  if,  in  the  discharge  of  that  new  power 
he  can  only  exercise  it  within  the  place  of  his  residence  or 
appointment,  he  in  that  case  stands  in  the  same  position  as  a 
commissioner  of  deeds,  or  a  justice  of  the  peace,  and  I  see  no 
more  reason  for  the  designation  of  his  residence  in  addition  to 
his  name  in  his  case  than  that  of  the  commissioner  or  justice. 
He,  as  well  as  those  officers,  are,  then,  officers  of  like  and  equal 
jurisdiction,  and,  alike  limited  as  to  the  locality  in  which 
their  power  can  be  exercised,  and  the  presumption  attaches 
alike  to  each  of  them  that  he  is  an  officer  acting '  within  his 
proper  jurisdiction,  and  that  the  place  of  such  jurisdiction  is 
indicated  by  the  venue.  I  may  add  that  the  objection  growing 
out  of  the  want  of  designation  of  the  place  of  the  notary's  juris- 
diction is  not  stated  with  sufficient  certainty  as  a  ground  of 
irregularity  to  be  available  as  such.  If  it  had  been  distinctly 
stated  it  might  have  been  shown  where  he  acted  and  that  he 
had  authority  to  act  where  he  did.  It  is  competent  to  show 
such  authority  in  support  of  a  proceeding  where  it  is  assailed. 

The  last  ground  of  objection  is  that  the  clerk  of  the  county 
of  Kings  had  no  jurisdiction  to  enter  the  judgment.  Assuming 
that  the  title  of  the  confession  referring  to  the  court  and  the 
names  of  the  parties  is,  as  contended  for,  a  nullity,  I  see  no 
reason  why  the  judgment  or  the  confession  could  not  be  en- 
tered up  in  Kings  county. 

Affidavits  taken  before  certain  officers  (including  now  notaries 
public)  when  required  or  authorized  by  law  in  any  cause,  mat- 
ter, or  preceding  (except  in  certain  cases  not  applicable  to  the 
present),  and  certified  by  such  officer,  may  be  read  before  any 
officer,  judicial,  executive,  or  administrative,  before  whom  any 
such  cause,  matter,  or  proceeding  may  be  pending  (see  2  Rev. 
Stat.,  284,  §  49).  The  provision  does  not  limit  the  use  of  them 
(as  would  seem  to  the  argument  of  counsel)  "  to  actions  pend- 
ing," but  is  sufficiently  broad  to  extend  to  all  cases  (except 
to  those  above  referred  to)  where  affidavits  are  required  to  be 
used  in  courts  or  before  officers  of  the  classes  designated. 

The  clerk  of  a  county  is  classed  among  the  judicial  officers 
in  the  classification  of  civil  officers  (1  Rev.  Stat.,  96).  The 
affidavit  in  question  might  therefore  be  used  before  any  county 
clerk,  and  under  sec.  384  of  the  Code  the  judgment  might  be 
entered  with  any  county  clerk  and  not  merely  in  the  county 
where  the  statement  authorizing:  it  was  verified. 

D 


262  ABBOTTS'  PKACTICE   REPORTS. 

Patterson  v.  Patterson. 

There  is,  therefore,  no  ground  for  the  last  objection. 

I  have  thus  gone  over  and  considered  all  the  objections  urged 
against  the  judgment  in  question,  in  deference  to  the  zeal  and 
apparent  confidence  in  them  of  the  counsel,  as  well  as  the  im- 
portance of  some  of  the  positions  taken. 

The  result  is  that  none  of  them  are  well  founded,  and  the 
motion  must  be  denied  with  ten  dollars  costs,  to  be  paid  by  the 
party  on  whose  behalf  it  is  made. 


PATTERSON  against  PATTERSON. 

New  York  Superior  Court ;  General  Term,  October,  1863. 

PLEADING. — VARIANCE. — APPEAL. 

A  complaint  seeking  to  set  aside  conveyances  and  other  instruments  affect- 
ing real  property,  on  the  ground  that  they  were  obtained  by  fraud,  is  riot 
sustained  by  proof  that  they  constitute  a  mortgage  from  which  the  plain- 
tiff has.a  right  to  redeem.  This  is  not  a  mere  variance,  but  a  failure  to 
prove  the  cause  of  action  in  its  entire  scope  and  meaning. 

If  this  objection  be  taken,  on  a  motion,  at  the  trial  before  a  referee,  to  dig- 
miss  the  complaint  upon  the  plaintiff's  evidence,  it  is  available  on  appeal 
from  a  judgment  for  the  plaintiff  upon  the  referee's  report  in  his  favor,  al- 
though no  exceptions  were  taken  to  the  report  upon  the  ground  that  the 
cause  of  action  as  found  was  not  that  set  forth  in  the  complaint. 

Appeal  by  the  defendant  from  a  judgment  in  the  plaintiff's 
favor,  entered  upon  the  report  of  MUKEAT  HOFFMAN,  Esq.,  ref- 
eree, before  whom  the  issues  in  the  action  were  tried. 

The  complaint  alleged,  in  substance,  that  on  the  9th  of  Novem- 
ber, 1853,  the  plaintiff,  William,  was  seized  of  the  legal  title, 
and  was  owner  and  in  possession  of  premises  in  the  city  of  New 
York,  known  as  313,  315  and  317  Bleecker  street.  That  his 
son,  the  defendant,  William  G.  Patterson,  to  whom,  by  reason 
of  his  own  ill  health,  the  management  of  his  business  had  been 
intrusted,  fraudulently  procured  the  premises  to  be  sold  by  the 
sheriff  upon  a  judgment  for  costs  against  the  plaintiff,  in  a  suit 


NEW  SEEIES;  YOL.   I.  263 

Patterson  v.  Patterson. 

instigated  by  the  son  for  that  purpose,  and  that  the  son  bought 
another  judgment  against  him  (recovered  by  one  Newall),  and 
also  fraudulently  induced  him  to  confess  a  judgment  to  him,  the 
son,  upon  both  of  which  the  son  redeemed  the  premises  from  the 
sheriff's  sale,  and  subsequently,  also  fraudulently,  induced  him 
to  give  a  quit-claim  deed  of  the  premises,  upon  a  promise  to  re- 
convey  them  ;  and  that  he  incurnbered  the  title,  and  refused  to 
re-convey.  The  prayer  for  relief  was  that  the  defendant  re-con- 
vey ;  that  the  plaintiff  be  declared  the  true  owner  ;  that  an  ac- 
counting be  had ;  and  that  a  certain  mortgage  described  in  the 
complaint  be  declared  a  lien  on  the  adjoining  premises  belong- 
ing to  the  defendant,  &c.,  and  for  an  injunction  pending  the  ac- 
tion, and  for  costs. 

The  answer  admitted  the  making  of  the  conveyances,  &c.,  but 
denied  the  fraud,  and-also  alleged,  as  a  third  defence,  that  de- 
fendant being  the  owner  of  adjoining  premises,  Nos.  319  and 
321  Bleecker  street,  and  relying  on  the  title  he  had  acquired  to 
the  premises  now  claimed  by  the  plaintiff,  had  erected,  with 
the  knowledge  and  assent  of  the  plaintiff,  buildings  partly  on 
both  premises,  and  that  they  could  not  be  removed,  and  would 
be  useless  to  defendant  without  the  land  in  question. 

The  particulars  of  the  evidence  given  upon  the  trial,  which 
was  very  conflicting,  are  sufficiently  indicated  in  the  opinion  of 
the  court. 

After  the  plaintiff  rested,  the  defendant  moved  to  dismiss  the 
complaint  on'  the  grounds : 

1.  That  no  cause  of  action  had  been  proved. 

2.  That  the  facts  proved  would  not  alone  entitle  plaintiff  to 
recover  anything. 

3.  That  the  cause  of  action  alleged  in  the  complaint  was  un- 
proved in  its  entire  scope  and  meaning. 

The  referee  denied  the  motion,  and  the  defendant  excepted. 

After  the  defendant  had  rested,  and  the  case  was  closed,  and 
the  referee  had  made  a  decision  holding  the  defendant  to  be  a 
mortgagee  in  possession,  on  the  plaintiff's  motion,  testimony  was 
allowed  to  be  adduced  as  to  the  respective  and  relative  values  of 
the  property  in  question,  and  the  adjoining  property  of  the  de- 
fendant. At  the  close  of  such  testimony,  the  defendant  offered 
to  prove  that  he  received  no  part  of  the  rents  of  the  buildings 
Nos.  313,  315  and  317,  intermediate  June,  1861,  and  May,  1862. 
during  which  time  he  paid  all  outgoings  in  respect  of  the  prem- 


264 ABBOTTS'  PRACTICE  REPORTS. 

Patterson  v.  Patterson. 

ises,  and  that  the  rents  during  that  period  were  received  by  the 
plaintiff  and  appropriated  to  his  own  use :  he  also  offered  to 
prove  that  for  long  prior  to  June,  1861,  he  did  not  receive  rents 
enough  from  said  premises  Nos.  313,  315  and  31Y  to  satisfy  the 
actual  necessary  outgoings  in  respect  of  said  premises. 

The  case  being  closed  except  as  to  the  values,  the  referee  re- 
fused to  admit  this  testimony,  and  to  his  refusal  the  defendant 
excepted. 

Defendant  also  offered  to  prove  by  the  defendant  and  also  by 
the  plaintiff,  that  neither  party  intended  by  the  several  transac- 
tions between  them,  by  any  or  either  of  them  to  create  the  rela- 
tion of  mortgagor  and  mortgagee. 

The  referee  refused  to  admit  this  testimony,  and  to  his  refusal 
the  defendant  excepted. 

The  plaintiff  being  re-called  in  his  own  behalf,  the  defendant's 
counsel  asked ; — if,  when  he  gave  the  quit-claim  deed  to  his  son, 
he  intended  it  as  a  mortgage  ?  also,  was  it  not  in  order  that  he 
should  hold  the  property  in  trust  ?  These  questions  were  both 
excluded  upon  objection,  and  the  defendant  excepted. 

The  referee,  in  the  written  opinion  accompanying  his  report, 
stated  that  it  was  not  often  that  he  had,  upon  evidence,  a  more 
uncertain  case  to  deal  with :  that  he  thought,  after  much  consid- 
eration, that  the  conclusion  best  warranted  was,  that  the  relation 
of  mortgagor  and  mortgagee  in  substance  was  the  original  true 
relation  of  the  parties  to  each  other ;  that  the  property  was  taken 
and  held  as  security  for  the  advances  made  by  the  defendant, 
and  upon  that  basis  the  rights  and  claims  of  each  were  to  be  ad- 
justed and  determined. 

As  conclusions  of  law,  he  found,  by  his  report,  that  the  plain- 
tiff was  entitled  to  a  judgment,  directing  the  defendant  to  convey 
and  release  to  him  the  premises,  now  known  as  Nos.  313,  315 
and  317  Bleecker  street :  upon  his  delivering  to  such  defendant, 
a  full  and  sufficient  release,  and  discharge  of  the  adjoining 
premises,  from  the  lien  of  the  mortgage  specified,  and  also  upon 
paying  to  the  defendant  the  sum  of  $1,134^  being  the  difference 
between  the  sum  he  had  found  due  to  the  defendant  from  the 
plaintiff,  and  the  proportion  of  such  mortgage,  which  the  defend- 
a:it  ought  to  bear. 

And  that  the  plaintiff  release  and  convey  to  the  defendant  all 
that  part  of  the  property  mentioned  in  the  sheriff's  deed,  and 


NEW  SEEIES ;  YOL.  I.  265 

Patterson  v.  Patterson. 

not  comprised  within  the  boundaries  of  the  parcels,  Nos.  313, 
315  and  317  Bleecker  street. 

Judgment  having  been  entered  accordingly,  the  defendant 
now  appealed. 

John  Townshend,  for  defendant,  appellant. — I.  There  was  a 
failure  of  proof,  and  the  complaint  ought  to  have  been  dismissed 
for  that  cause  on  the  defendant's  motion  (Salters  v.  Genin,  3 
Bosw.,  250 ;  Walter  v.  Bennett,  16  N.  Y.,  250 ;  Stearns  v.  Tap- 
pin,  5  Duer,  294 ;  Kelsey  v.  Western,  2  N.  T.  [2  Comst.],  501 ; 
Texier  v.  Sourin,  5  Duer,  389 ;  Moore  v.  McKibbin,  33  Barb., 
246). 

II.  The  facts  proved  at  the  close  of  the  plaintiff's  case  did 
not  constitute  any  cause  of  action,  and  defendant's  motion  to 
dismiss  the  complaint  ought  to  have  been  granted,     (a)  The  fact 
of  defendant's  obtaining  the  deed  on  a  promise  to  re-convey, 
even  if  it  raised  a  trust  for  the  plaintiff,  was  a  parol  trust,  which 
the  law  does  not  recognize  as  against  the  plaintiff's  deed,  abso- 
lute on  its  face  (Sturtevant  v.  Sturtevant,  20  N~.  T.,  40).      (b] 
Besides,  the  deed  from  the  sheriff  to  defendant  being  unim- 
peached,  plaintiff,  at  the  time  of  the  quit-claim,  had  nothing  to 
convey  and  nothing  to  be  re-conveyed. 

III.  The  finding  by  the  referee  that  the  parties  stood  in  the 
relation  of  mortgagor  and  mortgagee  was  a  surprise  to  both 
parties,  was  unwarranted  by  the  evidence,  and  was  contrary  to 
the  evidence  and  the  whole  case  made  by  the  plaintiff.     It  was 
an  hypothesis  adopted  by  the  referee  at  least  irreconcilable  with 
the  testimony  of  both  parties. 

IY.  Whether  or  not  a  deed  absolute  on  its  face  is  or  is  not  a 
mortgage,  may  be  proved  by  parol — and  the  referee  ought  to 
have  allowed  the  defendant  to  prove  that  the  deed  was  not  given 
as  a  mortgage  (Despard  v.  Walbridge,  15  N.  Y.,  374). 

Y.  The  defendant  proved  the  third  defence  set  up  in  the  an- 
swer, and  the  facts  proved  estopped  plaintiff  from  afterwards  in- 
sisting that  the  conveyance  to  the  defendant  was  other  than  it 
purported  to  be.  Defendant's  buying  the  gore,  and  building,  was 
inconsistent  with  a  trust  or  mortgage  (Palmer  v.  Smith,  10  N.  Y. 
[6  •Seld.'],  303  ;  .Hall  v.  Fisher,  9  Barb.,  17  ;  Walter  v.  Post,  6 
Duer,  363). 

,YI.  Defendant  testified,  and  no  attempt  was  made  to  contra- 
dict him,  that  in  some  years  the  property  did  not  make  up  the  ex- 


266  ABBOTTS'  PRACTICE  EEPOKTS. 

Patterson  v.  Patterson. 

penditures,  yet  the  referee,  because  he  considered  it  impossible  to 
state  an  account  between  the  parties  with  accuracy,  concluded  to 
make  defendant  no  allowance  for  his  excess  of  expenditure. 

VII.  A  mortgagor  cannot,  at  his  option,  abandon  the  right  to 
redeem  part  of  the  premises.      If  he  comes  in  to  redeem,  he 
must  be  ready  to  redeem  all.      To  allow  him  to  elect  which 
part  he  will  redeem,  and  which  abandon,  would  lead  to  great 
injustice. 

VIII.  The  judgment  is  so  indefinite  as  to  render  it  impossible 
to  carry  it  into  effect,  or  to  know  whether  or  not  it  has  been 
complied  with. 

Sterne  Chittenden,  for  the  plaintiff,  respondent. 

BY  THE  COTTKT.* — ROBERTSON",  J. — Although  no  exception 
was  taken  to  the  report  of  the  referee  upon  the  ground  that 
the  cause  of  action  as  found  was  not  that  set  forth  in  the  com- 
plaint, which  seems  to  be  necessary  in  some  cases  (Belknap  v. 
Seely,  14  N.  T.  [4  JTern.],  143  ;  Parsons  v.  Suydam,  3  E.  D. 
Smith,  280) ;  yet  the  objection  was  distinctly  taken  on  tlie 
motion  to  dismiss  the  complaint,  after  the  plaintiff's  evidence 
had  been  introduced,  that  he  had  not  established  his  cause  of 
action,  and,  as  will  presently  be  seen,  all  subsequent  evidence 
was  admitted  for  another  purpose, — that  of  taking  an  account. 
A  subsequent  finding  by  a  referee  of  a  different  cause  of  action, 
although  fully  proved,  would  still  less  deprive  the  defendant 
of  the  benefit  of  such  an  objection,  since  in  fact  it  would  be 
an  admission  that  it  was  well  founded. 

This  becomes  the  more  proper,  as  the  referee,  after  deciding 
upon  mere  circumstantial  testimony,  that  the  parties  stood  in 
the  relation  of  mortgagor  and  mortgagee,  so  as  to  entitle  the 
plaintiff  merely  to  redeem  the  premises,  instead  of  entirely 
avoiding  the  instruments  assailed,  prevented  the  defendant 
from  introducing  any  direct  testimony  to  disprove  the  ex- 
istence of  such  relation.  Neither  party  had  charged  or  ad- 
mitted it  in  the  proceedings,  or  apparently  attempted  know- 
ingly to  prove  or  disprove  it.  Such  an  exclusion  of  evidence 
involves  in  the  first  place  the  question  how  far  it  was  a  pro- 
per exercise  of  discretion  and  not  the  deprivation  of  an  absolute 
right.  The  order  of  introducing  evidence',  the  re-calling  of  a 

*  Present  ?,IO.NCIVIEF,  ROBKJITSON  and  MOXKLJ.  JJ. 


NEW  SERIES;  YOL.  I.  267 

Patterson  v.  Patterson. 

witness  already  examined,  to  prove  a  new  fact  or  explain  his 
testimony,  and  the  opening  of  the  case  to  allow  new  evidence, 
are  within  such  discretion.  A  general  introduction  of  new 
evidence  on  one  side  as  to  any  particular  point  not  before 
touched,  without  a  like  permission  to  the  other,  would  hardly 
be  a  fair  exercise  of  it :  since  the  utter  absence  of  testimony 
on  one  side  as  to  material  points  might  thus  by  the  favor  of 
the  court  after  his  adversary  had  closed  his  case  be  made  the 
means  of  great  injustice,  by  cutting  off  testimony  to  rebut 
that  offered  to  make  up  such  deficiency.  Although  the  plain- 
tiff's testimony  may  have  been  sufficient  to  sustain  the  case  as 
found  by  the  referee,  it  was  also  pertinent  to  that  set  out  in 
the  complaint,  notwithstanding  that  nothing  was  said  in  it,  as 
will  appear  hereafter,  of  any  advances,  or  security,  or  mort- 
gage. It  is  evident  that  although  the  referee  should  have 
already  determined  in  his  own  mind,  that  the  transactions  be- 
tween the  parties  were  loans  secured  by  a  mortgage,  he  could 
not  decree  any  relief  according  to  that  view,  until  the  value 
of  the  different  parts  of  the  premises  as  well  as  the  amount  of 
advances  had  been  proved,  so  that  the  evidence  could  not  be 
closed  until  after  such  proof  of  value  had  been  given.  Evi- 
dence of  value,  however,  would  have  some  bearing  on  the 
nature  of  the  instruments  executed  to  the  defendant:  if  it 
greatly  exceeded  the  amounts  advanced  by  him,  it  would  tend 
to  show  them  to  be  mortgages  or  something  else  than  absolute 
conveyances.  The  permission  given  to  the  defendant  to  give 
proof  of  value  to  rebut  that  conclusion,  would  not  the  less  ren- 
der improper  the  exclusion  of  evidence  on  his  part  to  prove 
there  was  no  mortgage,  as  he  was  entitled  to  introduce,  if  any, 
all  kinds  of  evidence  to  do  so.  He  was  permitted  to  intro- 
duce evidence  of  advances  of  money,  but  that  affected  the 
terms  of  redemption,  and  the  state  of  the  accounts,  although 
in  some  measure  it  bore  on  the  question  of  the  nature  of  the 
instruments.  He  was  even  prevented  from  showing  that 
the  property  did  not  yield  enough,  part  of  the  time,  to  pay 
expenses,  or  that  the  plaintiff  appropriated  the  rents  during 
another  part  to  his  own  use.  It  is  possible,  however,  that  the 
exclusion  of  the  evidence  on  the  defendant's  part  to  disprove 
every  relation  of  mortgagor  or  mortgagee,  may  have  been  a 
mere  exercise  of  discretion,  although  stretched  to  its  utmost 
limits,  and  as  a  question  of  surprise  it  may  only  be  available 


268  ABBOTTS'  PEACTICE  REPORTS. 

Patterson  v.  Patterson. 

on  a  motion  for  a  new  trial  at  special  term  ;  but  there  are  ques- 
tions involving  the  merits  embraced  iri  the  appeal  taken. 

I  have  been  unable  to  reconcile  the  cause  of  action,  as  found 
by  the  referee,  with  that  made  in  the  complaint.  That  does 
not  state  any  money  advanced  or  agreed  to  be  advanced  by  the 
defendant :  on  the  contrary,  it  alleges  the  payment  of  the  Newell 
judgment  by  the  plaintiff,  his  having  furnished  money  to  the 
defendant  to  pay  those  of  Crosby  and  McDonald,  under  which 
the  sale  was  made,  and  also  that  he  paid  the  interest  on  the 
mortgage,  the  taxes  and  water  rates,  and  the  expenses  of  re- 
pairs and  alterations,  as  well  as  received  rents  from  tenants, 
and  even  from  the  defendant,  apparently  as  evidence  of  owner- 
ship. There  were  no  other  moneys  advanced  or  to  be  advanced. 
The  plaintiff  alleges  in  his  complaint  that  the  judgment  con- 
fessed by  him  was  given  to  enable  the  defendant  to  redeem, 
and  on  his  promise  to  convey  the  property  to  th.e  plaintiff  as 
soon  as  he  had  done  so.  So,  too,  he  alleges  therein  that  the 
quit-claim  was  given  to  enable  the  defendant  to  procure  a  new 
loan,  and  on  a  promise  of  re-conveying  immediately  afterwards. 
No  terms,  qualifications,  or  conditions  are  stated  as  to  such  re- 
conveyance ;  on  the  contrary,  it  is  alleged  to  have  been  pe- 
remptorily demanded.  There  is  no  pretence  of  the  defendant 
taking  security  for  any  sums  to  be  advanced,  no  admission  of 
any  advance.  The  assumption  that  the  instruments  assailed  by 
the  complaint  were  taken  as  security  for  sums  advanced  and  to 
be  advanced,  and  valid  as  mortgages,  contradicts  the  main 
charges  in  it.  There  is  no  evidence  of  any  promise  to  re-con- 
vey, except  the  plaintiff's  testimony ;  and  he  does  not  state  any 
terms  or  conditions  of  re-conveyance ;  the  defendant  denies  it. 

The  referee  has  also  found  that  the  plaintiff  relinquished  his 
right  to  the  part  of  the  premises  on  which  Nos.  319  and  321 
Bleecker  Street  are  built.  Whether  this  was  done  by  writing, 
or  orally,  is  not  stated  :  there  is  no  evidence  of  the  former,  and 
the  only  ground  of  inferring  a  relinquishment  was  that  the 
plaintiff  did  not  collect  the  rents  of  them,  and  told  the  builder, 
Bodgers,  that  he  did  not  own  the  rear  ground. 

It  will  not  be  necessary  to  inquire  minutely  into  the  question 
whether  there  is  evidence  in  the  case  to  sustain  the  referee's 
findings,  which  must  ultimately  rest  wholly  upon  the  superior 
reliance  to  be  placed  upon  the  plaintiff's  testimony  rather  than 
upon  that  of  the  defendant,  notwithstanding  the  disproof  of  the 


NEW  SERIES ;  VOL.  I.  269 

Patterson  v.  Patterson. 

former  in  various  particulars,  such  as  his  payment  of  different 
judgments,  his  ignorance  as  to  such  judgments,  and  his  never 
having  held  himself  out  as  agent  or  given  receipts  as  such,  his 
contradiction  of  himself,  and  the  deplorable  uncertainty  and 
feebleness  of  his  memory  in  many  particulars,  owing,  perhaps,  to 
his  age.  And  yet  the  most  important  parts  of  the  defendant's 
answer  are  virtually  sustained  by  the  report.  That  and  the 
account  on  which  it  is  based,  concede  that  the  defendant  bought 
the  Newell  judgment,  that  the  moneys  for  which  the  judgment 
was  confessed  were  really  due,  that  he  paid  his  own  moneys  to 
redeem  under  the  sheriff's  sale,  employed  the  moneys  received 
from  the  Savings  Bank  to  pay  the  Land  and  Trust  Company, 
bought  and  paid  for  the  gore  and  put  up  the  buildings  on  it  at 
his  own  expense,  and  paid  five  hundred  dollars  on  account  of 
the  mortgage  on  the  premises.  The  plaintiff  undoubtedly  let 
the  premises  and  occupied  part ;  received  the  rent  of  the  rest 
and  expended  part  of  it  for  the  support  of  himself  and  family, 
and  furnished  moneys  therefrom  to  the  defendant  to  pay  taxes 
and  incumbrances.  The  only  question  is,  in  what  capacity  he 
so  received  and  expended  the  rents.  The  defendant  claimed 
that  the  plaintiff  acted  as  agent,  and  he  is  supported  by  the 
plaintiff's  own  statements  in  writing  and  under  oath,  and  his 
denial  of  ownership,  and  the  fact  that  for  nearly  ten  years  he 
made  no  attempt  to  get  back  his  title,  and  did  some  further  act 
to  preclude  himself  from  claiming  the  land  on  which  319  and 
321  Bleecker  Street  stood.  The  defendant  also  stated  that 
the  plaintiff  retained  the  amount  expended,  on  the  understand- 
ing he  was  to  get  his  living  out  of  the  premises  after  paying 
taxes  and  incumbrscnces.  This  does  not  seem  to  be  a  very 
unnatural  arrangement  between  a  father  and  son,  where  the  lat- 
ter has  twice  saved  the  property  from  sacrifice  by  taking  up 
judgments  and  redeeming  .it,  and  where  the  former  has  no 
means  to  pay  off  the  latter's  advances ;  and  it  is  at  least  equally 
reconcilable  with  the  facts  proved,  as  the  existence  of  a  mort- 
gage. The  explanation  given  by  the  learned  referee  of  the 
plaintiff's  statements  of  being  agent,  that  the  defendant  was 
mortgagee  in  possession,  is  unsatisfactory.  The  plaintiff  claims 
he  was  never  out  of  possession,  he  continued  to  occupy  part  of 
the  premises,  rented  the  rest,  received  the  rents  and  paid  the 
incumbrances  as  owner  ;  the  defendant  occupied  only  a  part,  and 
for  that  the  plaintiff  says  he  paid  him  rent.  One  or  the  other 


270  ABBOTTS'  PRACTICE  REPORTS. 

Patterson  v.  Patterson. 

statement  is  clearly  untrue.  There  is  a  singular  absence  of 
corroborative  testimony,  apparently  within  reach  on  both  sides. 
And  it  appears  to  me  very  dangerous,  after  the  lapse  of  ten 
years,  to  take  away  a  title  derived  under  hostile  proceedings 
against  the  plaintiff,  by  converting  an  absolute  deed  from  a 
sheriff  into  a  mere  mortgage  to  the  party  to  whom  it  was  given, 
solely  on  the  contradictory  and  contradicted  testimony  of  the 
supposed  mortgagor. 

The  promise  to  give  a  deed  back,  could  not  convert  the 
defendant  into  a  mortgagee.  He  might  be  rendered  a  trustee, 
in  case  he  had  induced  the  plaintiff,  himself,  to  abstain  from 
redeeming ;  but  there  is  no  evidence  of  that.  Any  misrepre- 
sentation in  regard  to  the  quit-claim  deed  could  not  deprive 
the  defendant  of  the  title  which  he  acquired  by  redemption 
under  the  Newell  judgment,  independently  of  his  right  to  re- 
deem under  his  own  :  and  which  he  could  have  acquired  with- 
out any  assistance  from  the  plaintiff. 

But  the  main  difficulty  remains  that  the  referee  has  given 
judgment  on  a  cause  of  action  as  found  by  him,  different  from 
that  sued  upon  and  set  out  in  the  complaint.  That  was  for 
fraud  in  obtaining  a  deed  from  the  sheriff,  and  a  quit-claim 
deed  from  the  plaintiff.  The  fraud  consisted  in  instigating  a 
suit  in  the  plaintiff's  name,  allowing  a  judgment  to  be  obtained 
against  him  for  attorneys'  fees  in  such  suit,  omitting  to  apply 
moneys  furnished  to  pay  such  claim,  procuring  a  sale  by  a 
sheriff,  using  a  previous  judgment  that  had  been  paid  by  the 
plaintiff,  and  one  newly  confessed,  to  redeem  from  such  sale, 
inducing  the  plaintiff  to  believe  that  the  title  was  still  in  him, 
and  procuring  a  quit-claim  on  a  promise  forthwith  to  re-convey, 
and  a  false  representation  of  the  object  of  procuring  it.  Such 
fraud  not  being  proved,  the  referee  has  found  a  cause  of  action 
on  contract  by  which  the  defendant  took  the  Newell  judgment, . 
sheriffs  and  quit-claim  deeds  as  security  for  moneys  advanced 
and  to  be  advanced.  This  is  not  a  case  of  variance  under  the 
1 6th  section  of  the  Code,  but  a  failure  to  prove  the  cause  of 
action  in  its  entire  scope  and  meaning  (Salters  v.  Genin,  7  Abb., 
193  ;  Texier  v.  Gouin,  5  Duer,  389  ;  Walter  v.  Bennet,  16  N. 
jr.,  250 ;  Kelsey  v.  Western,  2  N.  Y.  [2  Comst^  500).  An 
amendment  of  the  proceedings  to  correspond  with  such  .findings, 
even  if  it  could  now  be  made,  would  change  substantially  the 


NEW  SERIES ;  VOL.  I.  271 

Cannavan  v.  Conklin. 

claim,  an  action  to  set  aside  entirely  for  fraud  being  entirely 
different  from  one  to  redeem  from  the  mortgage. 

No  stronger  case  can  well  be  imagined,  of  surprise  by  prov- 
ing an  entirely  different  cause  of  action  from  that  set  out  in  the 
complaint.  Had  the  pleadings  been  at  common  law  as  for- 
merly, a  replication  which  had  set  up  the  cause  of  action  such 
as  that  found  would  have  been  such  a  departure  from  the  com- 
plaint as  to  make  the  replication  defective.  The  issues  were 
tried  on  a  question  of  fraud,  to  which  alone  the  testimony  was 
directed.  The  referee  held  that  by  indirection  and  inference 
it  established  circumstantially  a  contract  not  set  up  in  the  com- 
plaint, yet  refused  to  allow  the  defendant  to  introduce  direct 
testimony  to  rebut  such  inference.  The  report,  therefore,  was 
unwarranted  by  the  evidence. 

The  judgment  should  be  reversed,  and  the  order  of  reference 
discharged,  a  new  trial  to  be  had,  and  the  costs  of  the  appeal  to 
abide  the  event. 


CANNAVAN  against  CONKLIN. 

New  York  Common  Pleas  ;  General  Term,  November,  1865. 
POSSESSION. — JURISDICTION  OF  DISTRICT  COURT. 

One  who  reserves  a  right  of  possession  and  use  in  a  pier,  though  he  has 
parted  with  the  title,  is  still  liable  for  injuries  caused  by  its  bad  con- 
dition. 

In  an  action  for  injuries  arising  from  the  defendant's  negligence  in  not  re- 
pairing the  pier  in  his  possession,  though  some  evidence  be  given  to 
show  that  he  has  parted  with  the  title  to  the  pier,  the  question  of  title 
is  not  raised  so  as  to  oust  the  district  or  justice's  court  of  its  jurisdiction. 

Appeal  from  the  district  court. 

Plaintiff  Gerald  Cannavan  sued  the  defendants  Herman 
Hesdorf,  E.  E.  Conklin,  James  Schindler,  and  Charles  Cawley, 
for  damages,  for  loss  of  a  horse  through  falling  through  a  pie* 


272  ABBOTTS'  PRACTICE  REPORTS. 

Cannavan  v.  Conklin. 

in  the  possession  of  those  defendants.  On  the  trial,  the  value 
of  the  horse,  and  its  loss  through  the  insecure  condition  of  the 
pier,  was  shown.  The  defendants  Conklin  and  Schindler  set 
up  that  they  had  leased  the  pier  to  Herman  Hesdorf,  and  no 
longer  had  any  possession  of  or  liability  for  the  pier. 

Proof  was  given,  though  the  proof  was  conflicting,  that  de- 
fendants Conklin,  &c.,  continued,  under  a  reservation  in  the 
lease,  to  receive  coal  and  ice  at  the  pier,  and  kept  their  scales 
upon  it. 

The  district  court  gave  judgment  against  all  the  defendants, 
and  the  defendants  E.  E.  Conklin,  James  Schindler  and 
Charles  Cowley  appealed. 

Titus  JB.  Eldridge,  for  appellants. 

A.  H.  Heavy,  for  respondents. — I.  It  is  clear  from  the  evi- 
dence that  a  case  has  been  made  against  the  appellants.  It 
was  proved  that  the  plaintiff  owned  a  horse  on  24th  November 
last :  that  he  lawfully  went  upon  the  dock,  that  he  drove  his 
horse  over  the  part  appearing  safe,  that  the  horse  fell  through 
the  dock,  and  subsequently  died  from  the  injuries,  that  the 
appellants  were  the  owners  and  leased  the  dock  to  Hesdorf, 
but  reserved  and  used  that  part  where  the  horse  fell ;  and  that 
they  knew  the  bad  condition  thereof.  Nothing  further  was 
necessary  to  make  them  liable  (Cosgrove  v.  Smith,  18  N. 

jr.,  82). 

II.  Whether  the  appellants  had  any  interest  in  the  dock    at 
the  time  of  the  accident,  is  a  question  of  fact  deducible  from 
the  evidence,  and  this  court  will  not  disturb  the  finding  of  the 
justice,  on  this  ground.      It  is  too  well  settled  to  be  now  ques- 
tioned that  where  a  party  builds  a  dock,  bridge,  &c.,  the  law 
imposes  upon  him  an  obligation  to  keep  the  same  in  proper  re- 
pair ;  and  these  defendants  having  built  and  placed  a  scale  upon 
the  dock,  were  bound  at  their  peril  to  make,  and  at  all  times 
keep,  the  dock  as  safe  as  it  would  have  been  if  the  scale  had  not 
been  constructed.      The  objection  that  the  appellants  were  not 
under  obligations  to  keep  the  dock  in  repair,  was  not  raised  on 
the  trial,  and  cannot  be  considered  here  (Cosgrove  v.  Smith,  18 
N.  T.,  82). 

III.  It  is  in  proof  that  the  horse  died  from  the  injuries,  and 
that  he  was>worth  from  two  hundred  to  two  hundred  and  fifty 


NEW  SERIES  ;  VOL.  I.  273 

Cannavan  v.  Conklin. 

dollars.  The  appellant,  Shindler,  says  that  he  was  frequently 
on  the  dock,  and  that  it  was  frequently  out  of  repair.  Hesdorf 
and  Woods  testify  that  they  informed  the  appellants  of  the  bad 
condition  of  the  dock ;  yet  they  permitted  the  dock  to  remain 
out  of  repair.  This  is  negligence,  and  for  any  loss  arising  there- 
from they  are  liable. 

IV.  As  to  the  motion  for  a  non-suit,  it  cannot  be  possible  that 
counsel  are  serious  in  arguing  that  the  justice  erred  in  denying 
the  motion.     The  testimony  bears  examination,  and  requires  no 
comment  or  argument  from  counsel  to  satisfy  this  court  that  a 
case  had  been  made  out,  when  the  plaintiff  rested. 

V.  The  justice  had  jurisdiction  of  this  case.      It  is  an  action 
for  damages  for  the  loss  of  a  horse  by  the  wrongful  neglect  of 
the  appellants.     This  objection,  however,  was  not  raised  on  the 
trial. 

CARDOZO,  J. — The  case  presents  only  one  question  worthy  of 
consideration. 

The  action  in  the  cause  below  was  to  recover  for  the  loss  of 
a  horse  which  was  killed  on  the  24th  of  November,  1864,  by 
falling  through  the  pier  at  the  foot  of  Forty-third  street,  on  the 
North  river. 

The  death  of  the  horse,  its  value,  and  that  the  loss  happened 
by  reason  of  the  negligence  of  the  persons  in  possession  of  the 
pier,  in  suffering  it  to  be  in  a  dangerous  and  insecure  condition, 
are  sufficiently  proven.  The  question  is,  whether  the  appellants 
occupied  that  relation  to  the  pier  when  the  accident  occurred,  as 
to  make  them  responsible  for  it. 

On  the  1st  of  October,  1864,  the  appellants  entered  into  an 
agreement  with  their  co-defendant,  Hesdorf,  by  which  they  let 
unto  him  "  their  pier  at  the  foot  of  Forty-third  street,  North 
river,  for  the  term  of  seven  months  from  1st  day  of  October, 
inst,  to  May  1st,  1865,  *  *  *  *  reserving  to  themselves 
the  right  to  use  the  said  dock,  and  occupy  as  much  of  the  pier 
as  their  business  may  require." 

The  proof  establishes  that  the  appellants,  before  the  making 
of  this  lease,  had  erected  upon  the  pier,  a  pair  of  scales  for  the 
purpose  of  weighing  ice  and  coal,  and  that  both  before  and  after 
the  making  of  the  lease,  the  appellants  used  the  pier  and  the 
scales  which  they  had  so  erected.  % 

They  were,  therefore,  after  the  making  of  the  lease,  while 
N.  S.— VOL.  I.— 18. 


274:  ABBOTTS'  PRACTICE  REPORTS. 

Cannavan  v.  Couklin. 

such  use  continued,  in  the  possession  of  the  pier  jointly  with  the 
defendant  Hesdorf.  Indeed,  the  only  one  of  the  appellants  who 
was  examined  on  the  trial,  did  not  attempt  to  deny  the  posses- 
sion and  use  of  the  pier  down  to  about  November  1st.  The  dis- 
pute is,  whether  the  possession  of  the  appellants  then  ceased,  or 
continued  and  existed  at  the  time  of  the  loss.  The  accident 
happened  on  that  part  of  the  pier  which  had  been  used  by  the 
appellants.  If  the  appellants  were  in  possession  of  the  pier 
when  the  accident  occurred,  they  were  clearly  liable,  irre- 
spective of  the  question  of  ownership.  The  agreement  that 
Hesdorf  should  keep  the  pier  in  as  good  condition  as  it  was 
when  the  lease  was  made,  does  not  affect  the  case.  In  the 
first  place,  Hesdorf  was  only  to  keep  it  in  as  good  condition  as 
it  was  at  the  time  the  lease  was  made,  and  the  proof  shows 
that  it  was  in  bad  condition  at  that  time,  and  so  continued. 
Hesdorf  was  not  to  put  the  pier  in  good  order,  but  to  keep  it  in  the 
same  condition  that  it  was  in  when  the  lease  was  made  ;  and  it 
does  not  appear  that  it  was  in  any  worse  state  when  the  accident 
happened  than  it  was  in  when  the  lease  was  taken.  However 
this  may  be,  the  undertaking  of  Hesdorf  in  that  respect  is  a 
matter  solely  between  him  and  the  appellants,  and  cannot  re- 
lease tne  latter  from  their  liability  (growing  out  of  their 
possession)  to  strangers.  It  may  give  them  a  claim  for  re- 
dress against  Hesdorf,  but  that  question  does  not  arise  here. 

Hahn,  a  witness  for  the  plaintiff,  testified  that  on  the  24th  of 
November,  1864,  which  was  after  the  accident,  he  had  a  load  of 
coal  carried  from  that  pier  to  his  yard ;  and  John  "Wood,  who 
weighed  the  coal,  swore  that  it  was  weighed   with  the   scales 
which  the  appellants  had  erected. 

William  Duane,  another  witness  for  the  plain  tiffs,  stated  that 
at  and  after  the  accident,  these  same  scales,  with  which  he  had 
seen  the  appellants  weigh  ice,  were  yet  on  the  pier.  This  was 
some  evidence  to  show  that  the  appellants  then  continued  in 
possession  of  the  pier,  and  if  it  be  said  that  there  was  a  conflict 
of  testimony  upon  the  point  of  possession,  because  one  of  the  ap- 
pellants swore  that  "  he  thought  the  scales  were  removed  about 
the  first  of  November,"  that  presented  a  question  of  fact,  of 
which  the  justice's  finding  is  conclusive.  Besides,  although  one 
of  the  appellants  swore  that  they  had  sold  the  pier,  and  had 
delivered  a  written  conveyance  of  it,,  they  did  not  produce  the 


NEW  SERIES ;  VOL.  I.  275 

Wilbur  v.  Ostrom. 

instrument,  nor  disclose  its  terms,  nor  did  he  swear  that  by  the 
conveyance  they  had  transferred  anything  except  the  title  to 
the  pier,  and  for  aught  that  appeared,  the  appellants  may  not 
have  parted  with  the  right  to  use  the  pier,  which  they  reserved 
by  the  agreement  with  Hesdorf.  In  the  absence  of  such  proof, 
I  think  the  justice  was  justified  in  concluding  that  the  appel- 
lants were  in  possession  of  the  pier  when  the  accident  occurred ; 
and  if  that  be  so,  the  question  of  title  to  the  pier  is  immaterial, 
even  if  the  appellants  were  in  a  position  to  raise  that  point. 
But  they  are  not.  They  did  not  set  up  any  such  defence  by  way 
of  answer,  nor  give  the  undertaking  required  by  §  56  of  the 
Code  ;  and,  therefore,  under  §  58,  they  are  precluded  from  rais- 
ing the  question  of  title  to  the  premises. 

I  think  the  judgment  should  be  affirmed  with  costs. 


WILBUR  against  OSTROM. 

Supreme  Court,  Third  District  ;   Special  Term*  March,  1866. 
SLANDER.  —  EVIDENCE.  — 


In  an  action  of  slander,  in  charging  the  plaintiff  with  perjury,  where  the 
words  alleged  are  not  actionable  in  themselves,  the  plaintiff  must  show 
that  the  testimony  charged  to  have  been  false  was  material  and  pertinent 
to  the  issue  ;  and  although  the  materiality  and  pertinency  will  be  pre- 
sumed as  matter  of  law,  yet  the  contrary  may  be  shown  by  defendant. 

If  it  appear  on  the  whole  case  at  the  close  of  the  proof  in  the  action  for 
slander,  that  the  testimony  charged  to  have  been  perjury  was  wholly  im- 
material, or  that  the  part  of  it  to  which  the  charge  of  perjury  related,  if 
it  related  to  part  only,  was  immaterial,  the  defendant  is  entitled  to  a  dis- 
missal of  the  complaint. 

Motion  for  a  judgment  upon  a  verdict. 

The  facts  are  stated  in  the  opinion  of  the  court. 


276  ABBOTTS'  PEACTICE  KEPORTS. 

"Wilbur  v.  Ostrom. 

J.  L.  Hill  and  W.  A.  Beach,  for  plaintiff. 
D.  McChesney  and  A.  Pond,  for  defendant. 

BOCKES,  J. — This  is  an  action  of  slander,  and  was  tried  before 
me  at  the  Saratoga  Circuit,  September,  1865.  The  plaintiff  had 
a  verdict  for  one  hundred  and  fifty  dollars.  On  the  trial,  the 
question  arose,  whether  the  words  charged  and  proved  imputed 
the  crime  of  perjury,  inasmuch  as  the  words  related  (as  it  was 
insisted),  to  a  statement  made  by  the  plaintiff,  when  testifying 
as  a  witness  on  a  trial  before  a  justice  of  the  peace,  wholly  irrel- 
evant to  the  issue.  A  motion  for  non-suit  was  made  on  this 
ground,  but  the  question  was  reserved  by  consent  of  the  parties, 
and  I  then  held,  for  the  purposes  of  the  trial,  that  the  words 
charged  in  the  complaint  and  proved,  had  reference  to  material 
testimony  given  by  the  plaintiff  on  the  trial  before  the  justice, 
and  left  to  the  jury  only  the  question  of  damages. 

The  plaintiff  now  moves  for  judgment  on  the  verdict,  and  the 
defendant  at  the  same  time  renews  his  motion  for  non-suit,  or 
dismissal  of  the  complaint,  reserved  at  the  trial. 

The  charge  against  the  plaintiff  was,  that  he  swore  false — or 
swore  to  a  lie — in  an  action  then  lately  tried  before  Esq.  COLE. 
It  is  not  actionable  to  say  of  a  person  that  he  swore  falsely,  or 
swore  to  a  lie,  unless  it  be  said  in  reference  to  his  testimony 
given  on  the  trial  of  a  cause,  or  in  some  proceeding  where  an 
oath  is  by  law  authorized  to  be  administered ;  and  not  then,  un- 
less the  charge  relate  to  some  statement  material  and  pertinent 
to  the,  issue  or  subject  matter  of  examination.  To  authorize  a 
recovery  for  the  uttering  of  the  words  charged  in  the  complaint, 
the  plaintiff  was  bound  to  show  the  trial  before  Esq.  COLE,  that 
he  had  jurisdiction,  that  the  plaintiff  was  sworn,  and  gave  mate- 
rial testimony  on  the  trial,  and  that  the  words  were  spoken  by 
the  defendant  of  and  concerning  the  plaintiff,  and  of  and  con- 
cerning his  testimony  so  given  on  such  trial  (1  Johns.,  10 ;  20 
Johns.,  344 ;  9  Cow.,^0 ;  I  Wend., 475  ;  11  Wend.,  140 ;  i2  Wend., 
500 ;  16  Wend.,  450 ;  14  Wend.,  120 ;  3  Hill,  572 ;  3  Barb.,  625  ; 
31  Barb.,  106).  It  will  be  presumed  that  the  party,  if  sworn 
and  examined  as  a  witness  on  the  trial  of  a  cause,  gave  material 
testimony.  Such  is»  the  presumption  of  law.  So,  if  a  person 
charge  another  with  swearing  falsely,  referring  to  his  testimony 
given  on  the  trial  of  a  cause  in  a  court  of  justice,  it  imports  the 
crime  of  perjury,  because  of  the  presumption  of  law  that  his  tea- 


NEW  SERIES ;  VOL.  I.  277 

Wilbur  v.  Ostrom. 

timony  was  material,  and  pertinent  to  the  issue.  In  such  case, 
the  materiality  of  the  testimony  stands  proved  by  legal  intend- 
ment,  and  no  affirmative  proof  of  the  fact  is  necessary  (3  Hill, 
572 ;  3  Barb.,  625).  But  it  is  competent  for  the  defendant  to 
rebut  this  legal  presumption.  He  may  show,  if  he  can,  that  the 
testimony  of  the  plaintiff  was  wholly  and  entirely  immaterial, 
or  that  the  part  of  his  testimony  to  which  the  charge  of  false 
swearing  related — in  case  it  related  to  part  only — was  imma- 
terial, and  thus  defeat  the  action  (see  cases  above  cited).  And, 
indeed,  the  defence  above  suggested  is  available  if  it  can  be 
predicated  on  the  whole  cause  at  the  close  of  the  proof.  If  it 
then  clearly  appears  that  the  charge  of  false  swearing  related 
to  immaterial-  evidence,  on  which  perjury  could  not  be  predica- 
ted, a  recovery  cannot  be  allowed,  and  a  motion  for  non-suit  or 
dismissal  of  the  complaint  should  be  granted.  I  am  here  speak- 
ing of  cases  like  the  present,  where  the  words  counted  on  are 
not  actionable  of  themselves,  but  are  made  so  by  their  relation 
to  extraneous  circumstances,  which  are  required  to  be  averred 
and  proved.  Holding  these  principles  and  rules  of  law  in 
mind,  how  stands  this  case  ?  There  was  an  action  tried  before 
Esq.  COLE,  of  which  he  had  jurisdiction,  wherein  the  plaintiff 
was  sworn,  and  .gave  evidence  as  a  witness,  material  to  the  is- 
sue. In  the  course  of  his  examination,  he  testified,  in  substance, 
that  he  had  not  been  to  Crescent  trying  to  get  the  school  for 
Miss  Knickerbocker.  The  defendant,  in  speaking  of  the  plain- 
tiff, and  in  relation  to  that  part  of  his  evidence  above  given, 
said  he  had  sworn  to  a  lie — had  sworn  false.  I  assume  that  the 
charge  of  false  swearing  was  made  in  regard  to  the  particular 
part  of  his  testimony  here  stated.  It  was  so  understood  by 
me  at  the  trial,  and  on  referring  to  the  evidence,  such  must 
be  I  think,  its  fair  and  necessary  construction  and  import. 
Mr.  Pease  says,  "  I  heard  the  defendant  make  charges  against 
the  plaintiff  in  December  last.  He  said  William  had  sworn 
to  a  lie ;  arid  he  could  prove  it  by  Mr.  Haight.  He  said  it  was 
in  a  case  between  the  Trustees  and  Miss  Benedict.  This  was 
said  in  Mr.  Ostrom's  house."  On  his  cross-examination  Mr. 
Pease  further  stated :  "  He  told  me  what  he  swore  to  a  lie 
about.  He  said  he  swore  that  he  had  not  been  to  Cohoes  try- 
ing to  get  the  school  for  Miss  Knickerbocker.  He  said  the 
question  was  asked  him,  and  he  said  no."  The  other  witness, 
Mr.  Van  Vrankin,  said,  "  About  April,  1864,  the  defendant  was 


278  ABBOTTS'  PKACTICE  REPORTS. 

Wilbur  v.  Ostrom. 

at  my  house,  and  began  to  talk  about  the  school  difficulty  be- 
tween Miss  Benedict  and  the  trustees.  He  said  he  did  not 
know  what  to  think  of  Isaac,  for  he  was  asked  the  question  on 
that  trial,  whether  he  had  not  been  to  Crescent  to  get  a  school 
for  Miss  Knickerbocker.  He  said  Isaac  answered  no.  He 
added,  a  few  days  after  this  I  saw  Mr.  Haight,  and  he  told  me 
Isaac  had  been  there  to  try  to  get  a  school  for  Miss  Knicker 
bocker.  He  then  said  Isaac  swore  false  in  that."  I  have  not 
given  all  the  testimony  of  these  witnesses,  but  all,  as  I  conceive, 
bearing  on  the  points  now  under  examination.  So  it  must  bo 
understood,  I  think,  that  the  charge  of  false  swearing  was  made 
in  relation  to  the  plaintiff's  statement,  on  his  examination  be- 
fore Esq.  COLE,  that  he  had  not  been  to  Crescent  to  try  to  get  a 
school  for  Miss  Knickerbocker.  This  part  of  the  plaintiff's 
testimony  he  asserted  was  false — that  in  this  he  swore  to  a  lie. 
The  question  then  is,  was  this  part  of  the  plaintiff's  testimony 
material  to  the  issue  in  the  suit  before  Esq.  COLE  ?  That  was 
an  action  by  Miss  Benedict  against  the  trustees  of  the  school 
district.  The  complaint  stated  that  the  trustees  employed  the 
plaintiff,  Miss  Benedict,  to  keep  school  from  April  27th  to 
October  13th,  at  two  dollars  per  week— that  she  kept  the  school 
under  the  contract  until  the  15th  May,  when  the  defendants, 
the  trustees,  dismissed  her,  and  refused  to  permit  her  to  fulfil 
the  contract,  to  her  damage  of  fifty  dollars.  The  defendant 
denied  each  and  every  allegation  of  the  complaint,  and  also 
averred  that  the  plaintiff  quit  voluntarily ;  and  further,  that  she 
had  been  settled  with  and  paid.  On  these  pleadings  the  trial 
before  Esq.  COLE  proceeded.  It  is  plain  that  there  was  no 
issue  before  Esq.  COLE,  to  which  the  testimony  charged  as 
false  could  be  pertinent  or  material.  Whether  or  not  Mr. 
Wilbur  had  been  to  Crescent  to  try  to  get  a  school  (or  the 
school)  for  Miss  Knickerbocker,  was  of  no  importance  what- 
ever. What  he  did  say  on  that  subject,  as  to  which  it  was 
charged  he  swore  falsely — swore  to  a  lie — did  not  tend  to  prove 
or  disprove  any  averment  either  in  the  complaint  or  answer. 
It  was  quite  too  remote,  even  if  drawn  out  for  the  purpose  of 
affecting  his  credibility.  Whatever  might  have  been  his  an- 
swer in  that  regard,  he  could  not  have  been  contradicted,  and 
if  false,  perjury  could  not  have  been  predicated  thereon  (Ross 
v.  Rouse,  1  Wend.,  475  ;  Roberts  v.  Champlin,  14  Wend.,  120 ; 
Oookshank  v.  Gray  and  wife,  20  Johns.,  344).  In  Ross  v. 


NEW  SERIES ;  VOL.  I.  279 

Wilbur  v.  Ostrom 

Rouse,  the  latter  was  called  as  a  witness  to  prove  conversations 
and  agreements  between  the  parties,  previous  to  a  contract 
being  drawn  up  and  executed.     Ross,  in  speaking  of  Rouse's 
testimony  in  that  regard  said,  "Every  word  you  have  sworn  to 
is  false  ;"  also,  "  A.  Rouse  has  sworn  to  a  lie,  and  I  can  prove 
it."     Here  Rouse  supposed  he  was  giving  material  evidence 
when  he  was  examined,  and  Ross  clearly  intended  to  charge 
him  with  the  crime  of  perjury,  yet  the  court  held  that  slander 
could  not  be  maintained.     In  Crookshank  -y.   Gray  and  wife, 
the  former  said  of.  Mrs.  Gray  that  she  had  sworn  to  a  lie.     It 
seems  there  had  been  a  trial  before  a  justice  of  the  peace. 
The  action  was  trespass  to  recover  damages  for  setting  dogs 
on  the  plaintiff's  cattle,  and  worrying  them  so  that  one  of 
them  died.     Mrs.  Gray  was  sworn  as  a  witness,  and  testified 
that  she  saw  the  defendants'  dog,  worrying  the  plaintiff's  steer, 
in  the  corner  of  the  defendants'  lot,  nearest  to  the  plaintiff's 
house :  and  that  she  was  standing  in  the  house,  and  the  dis- 
tance to  the  corner  of  the  lot  of  the  defendant  was  about 
thirty  rods,  and  there  were  no  trees  or  bushes  in  the  way  to 
obstruct  her  view.     Crookshank,  speaking  of  her  testimony  as 
to  the  distance  at  which  she  saw  the  dogs  worrying  the  steer, 
said,  she  had  sworn  to  a  lie.     Here  again,  doubtless,  all  parties 
supposed  at  the  time  Mrs.  Gray  was  giving  her  testimony,  and 
at  the  time  of  the  uttering  of  the  defamatory  words,  that  her 
statement  as  to  the  distance  mentioned  by  her  was  material 
to  the  case  on  trial,  and  Crookshank  evidently  intended  to 
charge  upon  Mrs.  Gray  the  crime  of  perjury.     So,  too,  the 
hearers  must  have  understood  the  charge  to  import  to  her  that 
crime.     Yet  the  court  held  that  slander  could  not  be  main- 
tained, and  for  the  reason  that  the  supposed  defamatory  words 
related  to  an  immaterial  statement,  on  which  perjury  could 
not  be  predicated. 

These  cases  have  not  been  overruled  :  on  the  contrary,  they 
have  often  been  cited  as  sound  in  principle.  According  to  these 
authorities,  as  well  as  the  others  above  cited,  the  point  taken 
by  the  defendant's  counsel  on  the  trial,  and  there  reserved  by 
consent  of  parties,  was  well  taken.  The  motion  for  judgment  on 
the  verdict  must,  therefore,  be  denied,  and  the  plaintiff's  com- 
plaint must  be  dismissed. 

I  have  arrived  at  this  conclusion  reluctantly,  as  I  can  well 
see  that  the  words  charged  were  calculated  to  injure  the  plain- 


280  ABBOTTS'  PKACTICE  BEPORTS. 

Lansing  v.  Lansing. 

tiff  in  public  esteem,  and  to  excite  painful  reflections.  The 
defendant  was  persistent  in  his  charges,  and  refused  to  withdraw 
them  when  a  conciliatory  and  neighborly  application  was  made 
to  him  for  that  purpose.  He  doubtless  intended  all  which  his 
words  implied  in  their  ordinary  meaning,  as  understood  by  per- 
sons unacquainted  with  the  technicality  under  which  he  escapes 
legal  responsibility :  still  I  must  adhere  to  the  settled  rules  and 
principles  of  law.  The  plaintiff  must  be  satisfied  with  the  cer- 
tificate afforded  by  the  verdict  of  the  jury,  which  exonerates  him 
from  all  moral  guilt,  and  stigmatizes  the  charge  against  his 
character  as  malicious  and  false,  although  he  cannot  hold  it  as 
an  indemnity  for  his  expenses  in  seeking  a  public  vindication  of 
his  integrity. 

The  motion  for  non-suit  must  prevail. 


LANSING  against  LANSING. 

Supreme  Court,  Third  District;   General   Term,  September, 

1865. 

EXECUTORS'   COMMISSIONS. — CHARGES  UPON  ACCOUNTING. 

Where  a  will  directs  the  executor  to  invest  a  fund,  and  accumulate  the  pro- 
ceeds for  the  benefit  of  a  minor,  without  anything  indicating  the  inten- 
tion to  create  a  separate  and  distinct  trust,  the  executor  will  hold  as  exe- 
cutor, rather  than  as  a  trustee ;  and  his  commissions  are  to  be  computed 
accordingly. 

Where  a  fund  is  set  apart,  and  the  income  given  for  the  benefit  of  the  lega- 
tee, without  specifying  a  certain  amount  of  income,  the  commissions  and 
taxes  are  chargable  upon  it,  and  not  on  the  general  estate. 

An  executor  or  other  trustee  of  a  fund  invested  in  land,  who  pays  the  high- 
way taxes  thereon,  by  his  personal  labor,  is  entitled  to  be  allowed  the 
amount  thereof  in  his  account,  as  if  it  had  been  paid  in  money. 

An  executor  is  not  chargeable  with  compound  interest,  except  in  clear  cases. 

If  the  will  directs  an  invostm«nt  to  be  made  upon  a  specified  sort  of  secur- 
ity, and  the  executor  finds  none  of  the  kind  offering,  he  is  not  bound  to 
seek  the  instructions  of  the  court,  but  will  be  held  to  have  performed  his 
duty  if  in  good  faith  and  a  sound  discretion  he  adopts  such  investment  as 


NEW  SERIES;  VOL.  I.  281 

Lansing  v.  Lansing. 

a  prudent  and  intelligent  man  would  do,  managing  his  own  affairs,  not  in 
reference  to  large  gains,  but  the  safety  of  the  principal  and  the  probable 
income. 

Appeal  from  a  surrogate's  decree. 

The  appellant  was  Rachel  S.  Lansing,  and  the  respondents 
were  Douw  F.  Lansing,  executor,  &c.,  and  Jane  Ann  Lansing. 

On  June  the  23d,  1849,  Peter  Leversee  made  his  last  will 
and  testament,  and  died  July  10th,  1849.  By  the  will,  the 
-testator  directed  his  executors,  at  the  expiration  of  four  years 
after  his  decease,  to  invest  out  of  his  estate,  upon  safe  and 
sufficient  real  estate  securities,  at  the  legal  rate  of  interest,  the 
sum  of  three  thousand  dollars,  and  to  keep  the  same  invested 
for  the  benefit  of  his  granddaughter,  Rachel  S.  Lansing,  until 
she  shall  attain  the  age  of  twenty-one  years,  or  until  her  death, 
applying  the  interest  that  might  be  received  from  said  invest- 
ment, or  so  much  thereof  as  might  be  necessary,  toward  the 
support  and  education  of  said  Rachel ;  and  when  she  shall  at- 
tain the  age  of  twenty-one  years,  his  executors  are  to  pay  the 
sum  of  three  thousand  dollars,  with  the  accrued  and  accumu- 
lated interest,  except  so  far  as  the  use  thereof  has  been  neces- 
sary as  aforesaid,  and  by  said  executors  deemed  proper  for  the 
education  and  support  of  said  Rachel ;  and  subject  to  the  like 
necessity,  his  executors  are  directed  to  reinvest  safely  and 
securely,  the  interest  they  may  receive  during  such  invest- 
ment, for  the  like  benefit  of  said  Rachel.  A  similar  provision 
is  made  for  the  benefit  of  Sarah  Maria  Witbeck.  The  testator 
bequeaths  specified  legacies  to  Peter  L.  Witbeck,  Sarah  Maria 
Witbeck,  his  granddaughter,  Helena  Lansing,  and  to  his  grand- 
sons, Isaac  N.  and  Peter  Leversee  Lansing. 

The  testator  also  directs  the  payment  of  the  sum  of  one 
hundred  dollars  annually,  for  the  period  of  four  years,  to  his 
daughter  Jane  Ann.  The  testator  then  devises  to  his  daughter 
Jane  Ann,  his  farm  in  Watervliet,  consisting  of  about  one 
hundred  and  twenty  acres,  and  also  devises  to  Peter  L.  Wit- 
beck  one  hundred  and  twenty  acres ;  he  also  made  the  follow- 
ing devise :  "  All  the  rest  and  residue  of  my  estate,  real  and 
personal,  whereof  I  may  die  seized  or  possessed,  I  hereby 
give,  devise  and  bequeath  (subject  to  the  previous  payment  of 
the  aforesaid  legacies  and  investments  aforesaid  by  my  execu- 


282  ABBOTTS'  PKACTICE  EEPOETS. 

Lansing  v.  Lansing. 

tors)  unto  my  said  daughter  Jane  Ann,  who  is  not,  however, 
entitled  to  the  possession  of  said  rest  and  residue  of  my  estate, 
or  the  rents,  issues,  and  profits  accruing  therefrom,  until  four 
years  after  my  decease." 

Eachel  having  arrived  at  the  age  of  twenty-one  years,  an 
accounting  was  had  before  the  Surrogate  of  Albany  county. 
All  the  parties  interested  were  cited  to  appear,  including  the 
residuary  legatee. 

The  respondent,  on  his  final  accounting,  claimed  there  was 
due  Eachel  five  thousand  four  hundred  and  forty-seven  dol- 
lars and  twenty-six  cents,  and  the  surrogate  decided  there' 
was  due  Eachel,  five  thousand  six  hundred  and  forty -one  dol- 
lars and  twenty-six  cents ;  to  wit,  principal,  three  thousand  dol- 
lars ;  increase,  three  thousand  and  ninety-three  dollars  and 
twenty-six  cents;  taxes  paid  by  respondent,  two  hundred  and 
ninety-seven  dollars  and  forty-four  cents ;  and,  as  respondent's 
commissions  on  the  gross  increase  of  the  legacy,  one  hundred 
and  fifty-four  dollars  and  fifty-six  cents. 

Eachel  S.  Lansing  from  this  decree  of  the  surrogate  appealed 
to  this  court. 

The  executor's  account,  filed  with  the  surrogate,  showed  an 
investment  of  the  sum  of  three  thousand  dollars,  the  amount 
of  the  legacy,  upon  bond  and  mortgage  on  the  10th  day  of 
July,  1853,  at  seven  per  cent,  per  annum,  and  an  allowance 
of  interest,  and  the  interest  upon  the  annual  interest  received 
up  to  the  time  of  the  accounting,  with  a  deduction  of  taxes, 
highway  taxes,  and  commissions  at  five  per  cent,  upon  the 
amounts  received.  It  also  showed  that  on  the  29th  day  of 
October,  1862,  the  mortgage  was  paid  up,  and  the  executor 
not  being  able  to  re-invest  upon  real  estate  security,  he  depos- 
ited the  same  in  a  savings  bank  at  five  per  cent,  interest,  com- 
pounded every  six  months,  which  interest,  with  interest  upon 
the  same,  was  credited  on  this  account.  Objections  were 
made,  that  the  charges  for  taxes  and  commissions  were  not 
proper  items  of  charge  against  the  legacy  or  its  increase;  to 
the  charges  of  commissions  at  five  per  cent. ;  to  the  deposit  of 
the  moneys  in  the  savings  bank,  at  an  interest  of  five  per  cent. ; 
to  the  charges  for  highway  taxes,  upon  the  ground  that  they 
had  been  retained  by  the  executor  as  a  compensation  for  his 
own  services,  he  having  performed  the  work  himself.  It  was 


NEW  SEKIES;  VOL.  I.  283 

Lansing  v.  Lansing. 

also  claimed  that  the  interest  should  be  compounded  from 
year  to  year. 

A  decree  was  made  on  the  15th  of  February,  1865,  con- 
firming the  account,  and  bringing  it  down  to  December  23d, 
1864,  and  directing  payment  to  the  appellant  of  five  thousand 
six  hundred  and  forty-one  dollars  and  twenty-six  cents,  with 
interest  at  five  per  cent,  from  that  time.  Objection  is  made 
to  the  allowance  of  five  per  cent,  instead  of  seven  per  cent, 
apon  this  account. 

A.  Lansing,  for  the  appellant. 
Ira  O.  Shafer,  for  the  respondents. 

Bi  THE  COURT.* — MILLER,  J. — Several  objections  are  made 
to  the  decree  of  the  surrogate,  which  I  will  proceed  to  con- 
sider. 

It  is  said  that  the  surrogate  erred  in  charging  the  appellant 
with  commissions,  taxes,  and  expenses. 

By  the  will  of  the  testator  the  executors  were  to  make  the 
investment  of  the  legacy  bequeathed  to  Rachel  S.  Lansing, 
and  to  keep  the  same  invested  until  she  arrived  at  the  age 
of  twenty-one  years,  or  until  her  death.  The  executors  were 
to  apply  the  interest,  or  so  much  as  they  deemed  proper, 
towards  her  support  and  education,  and  upon  her  arriving  at 
the  age  of  twenty-one  years,  they  were  to  pay  her  the  legacy 
and  the  accumulated  interest,  except  so  far  as  the  use  thereof 
was  necessary,  and  deemed  proper  by  said  executors  for  the 
education  and  support  of  said  Rachel.  The  rest,  residue,  and 
remainder  of  the  estate  is  also  disposed  of  subject  to  the  pre- 
vious payment  of  the  legacies  and  investments  by  the  exe- 
cutors. 

It  is  very  evident  from  the  will  that  there  was  no  trust 
created  in  the  hands  of  the  executors,  distinct  and  separate 
from  their  duties  as  such.  The  testator  does  not  name  them 
as  trustees,  and  manifests  no  intention  that  they  should  act 
otherwise  than  as  executors,  with  instruction  to  perform  cer- 
tain duties  by  virtue  of  their  powers  as  executors.  Without 
proper  words  to  establish  a  trust  it  cannot  be  inferred.  The 
iund  in  the  hands  of  the  executor  for  the  benefit  of  Rachel  S. 
Lansing,  was  held  by  him  in  his  character  as  an  executor,  and 

*  Present  HOGECOOM,  MILLEK  and  INQALLS,  JJ. 


284:      ABBOTTS'  PEACTICE  REPORTS. 

Lansing  v,  Lansing. 

the  trust  created  thereby  was  a  part  and  portion  of  the  duties 
imposed  upon  him  as  an  executor,  and  not  distinctly  and  sepa- 
rately as  a  trustee.  See  Drake  v.  Price,  5  N,  Y.  [1  Seld.~\, 
430 ;  Valentine  v.  Valentine,  2  Barb.  Ch.,  430,  438  &  9  ;  Wes- 
terfield  v.  Westerfield,  1  Barl.,  198. 

Acting  then,  as  executor,  and  not  as  trustee,  in  the  invest- 
ment and  management  of  the  legacy,  the  executor  was  entitled 
to  a  commission  of  one  per  cent,  upon  the  interest  or  increase 
of  the  fund,  instead  of  five  per  pent.,  which  was  erroneously 
allowed  him.  This  increase  was  not  a  separate  and  distinct 
receipt  of  money  independent  of  what  had  been  previously 
received,  but  merely  an  addition  to  the  principal  fund  of  the 
estate.  This  is  expressly  held  in  5  N.  Y,  [1  &&£],  430,  and  2 
Barb.  Ch.,  430,  before  cited,  and  is  well  settled  law.  By 
statute  the  executor  is  only  entitled  to  one  per  cent,  for  re- 
ceiving and  paying  out  sums  over  ten  thousand  dollars  (Ses- 
sion  Laws  of  1863,  608,  §  8),  and  the  estate  here  showed  assets 
to  the  amount  of  fifteen  thousand  dollars. 

.The  suggestion  that  the  executor  was  entitled  to  full  com- 
missions upon  the  principle  of  annual  rests,  has  no  application 
to  a  case  like  this.  5  N.  Y.  [1  Seld^  430,  was  similar  in 
most  of  its  leading  features  to  the  present  case,  and  that  dis- 
poses of  the  question  the  other  way. 

Whether  this  commission  should  be  taken  out  of  the  fund 
itself,  or  with  the  taxes  and  expenses  be  deducted  from  and 
chargeable  on  the  general  estate  is  another  and  a  different 
question,  which  must  be  determined  by  looking  at  the  pro- 
visions of  the  will  and  ascertaining  so  far  as  possible  what  the 
testator  really  intended. 

It  appears  that  the  legatee  was  to  receive  the  legacy  upon 
attaining  her  majority,  and  such  interest  as  remained  after 
paying  for  her  support  and  education. 

The  amount  was  specific,  and  it  was  subject  to  this  deduc- 
tion alone  without  any  reference  to  commissions  and  taxes, 
and  hence,  it  is  claimed  that  it  cannot  be  complied  with,  by 
the  payment  of  anything  less.  It  is  true  this  is  the  only  ex- 
ception made,  but  it  must  be  taken  into  consideration,  that 
this  amount  was  specially  set  apart  by  itself,  as  a  fund  for  the 
benefit  of  the  legatee,  and  as  such  it  had  a  distinct  character. 
It  was  taken  out  of  the  estate  for  a  specific  purpose,  and  the 


NEW  SERIES  ;  VOL.  I.  285 

Lansing  v.  Lansing, 

legatee  was  to  enjoy  the  interest,  so  far  as  it  might  be  necessary, 
until  she  became  of  age. 

It  is  quite  possible  that  the  residue  of  the  estate  may  have 
been  distributed  before  the  time  arrived  when  the  legacy  was 
due.  Had  such  been  the  case,  would  the  executor  have  been 
authorized  to  have  retained  an  uncertain  amount  in  his  hands 
to  meet  the  taxes  and  expenses? 

This  would  scarcely  have  been  considered  as  within  the 
meaning  and  intention  of  the  testator.  He  evidently  meant 
to  set  apart  this  amount  as  a  specific  sum,  the  increase  of 
which  should  be  appropriated  for  the  support  and  maintenance 
of  his  grandchild,  and  whatever  remained  to  be  re-invested, 
and  the  principal  and  interest  paid  over  at  the  proper  time ; 
and  did  not  contemplate  a  resort  to  the  estate  generally  to 
keep  down  the  taxes  and  commissions.  When  a  fund  is  thus 
situated,  and  the  party  only  entitled  to  the  income,  the  au- 
thorities would  appear  to  hold  that  it  is  subject  to  taxes  and 
commissions.  In  5  N.  Y.  [1  Seld.],  430,  before  cited,  where 
the  facts  bear  a  striking  similarity  to  the  present  case,  it  was 
conceded  that  a  commission  of  only  one  per  cent,  was  charge- 
able against  the  fund  set  apart. 

In  Pinckney  v.  Pinckney  (1  Bradf.,  269)  a  testator  gave  to 
his  wife  the  use  and  income  of  his  real  estate,  and  the  interest 
of  a  specified  sum,  and  it  was  held,  that  the  taxes  and  expenses 
were  chargeable  upon  the  fund,  and  not  upon  the  estate  gen- 
erally. The  Court  say,  "The  bequest  should  bear  its  own 
burden  ;  if  the  testator  had  intended 'these  charges  to  be  paid 
out  of  the  general  fund,  he  would  have  said  so  ;  and  there  is 
no  presumption  of  law  in  favor  of  the  doctrine  contended  for. 
The  widow  is  not  to  be  paid  a  certain  fixed  sum  annually,  nor 
are  the  executors  to  invest  such  an  amount  as  will  produce  a 
clear  net  income,  but  she  is  to  receive  the  income  of  a  particu- 
lar specified  property,  and  the  interest  of  an  investment  of 
some  thousand  dollars,  and  the  rest  of  the  estate  cannot  be 
taxed  so  that  she  can  obtain  the  gross  instead  of  the  net 
income. 

Much  of  the  reasoning  here  employed  is  applicable  to  the 
present  case.  The  interest  was  to  be  paid,  as  provided,  for 
certain  purposes,  and,  at  a  specified  period,  the  principal.  No 
provision  is  made  that  any  charges  upon  the  fund  should  be 


286  ABBOTTS'  PRACTICE  REPORTS.     . 

Lansing  v.  Lansing. 

paid  out  of  the  general  estate,  and  why  should  not  the  legacy 
be  chargeable  with  these  expenses? 

In  Lawrence  v.  Hoi  den  (3  Bradf.,  142),  where  a  testator  gave 
his  wife,  by  his  will,  the  use  of  a  dwelling  house  for  life  free 
and  clear  of  all  incumbrances,  and  in  case  she  requested  it, 
directed  the  property  to  be  sold,  and  the  proceeds  invested, 
and  the  interest,  income  and  dividends,  applied  to  her  use,  it 
was  held  that  the  executors  were  not  bound  to  pay  the  cur- 
rent taxes  and  assessments  out  of  the  testator's  general  estate. 

In  Booth  v.  Ammerman,  (4  JBradf.,  129),  the  testator  gave  to 
his  sisterj  the  interest  upon  fifteen  hundred  dollars,  in  case 
she  should  become  a  widow,  during  her  widowhood,  payable 
annually,  and  it  was  held  that  taxes  and  commissions  were 
chargeable  upon  the  trust  fund.  The  Court  say,  "  The  taxes 
which  the  executor  may  be  compelled  to  pay,  and  also  the 
commissions  on  the  interest  payable  annually  to  the  legatee, 
must  come  out  of  the  interest,  and  are  not  chargeable  upon 
the  general  estate." 

The  effect  of  the  authorities  cited  clearly  is,  that  a  fund 
thus  set  apart  where  the  income  is  given,  without  any  particu- 
lar amount  being  specified,  is  chargeable  with  commissions 
and  taxes. 

The  objection  made  to  the  allowance  for  highway  taxes,  is 
founded  upon  the  ground  that  the  executor  personally  worked 
out  the  taxes.  The  commissions  for  moneys  received  and  paid 
out  are  in  lieu  of  all  personal  services  of  the  executor  or  ad- 
ministrator, and  he  will  not  be  allowed  any  further  compensa- 
tion for  his  trouble  or  loss  (D.  Sur.,  496). 

Is  the  charge  made  in  violation  of  this  rule  ?  We  must  as- 
sume that  the  road-taxes  were  imposed  upon  the  fund,  and  that 
the  executor  was  liable  and  bound  to  pay  them.  Instead  of 
paying  the  money  or  licensing  a  person  to  do  the  work,  he  per- 
formed the  service  personally. 

He  paid  it  in  that  way.  The  amount  was  fixed  and  settled, 
and  the  estate  legally  obliged  to  pay  it.  It  could  make  no 
difference  whether  paid  in  that  way  or  by  money.  It  is  the 
same  thing  as  if  he  had  paid  the  money.  He  paid  it  by  work 
instead  of  money,  and  it  presents  a  case  entirely  different  from 
one  where  services  for  which  no  compensation  is  fixed  are 
rendered  for  the  benefit  of  an  estate,  and  a  charge  made  for 
buch  services.  There  an  opportunity  is  furnished  to  make  out 


NEW  SERIES ;  VOL.  I.  287 

Lansing  v.  Lansing. 

charges  and  audit  them,  while  here  the  estate  must  pay  a  cer- 
tain sum.  I  think  that  a  rendition  of  the  service  must  be  con- 
sidered as  a  liquidation  and  payment  of  the  tax,  for  which  the 
executor  should  be  allowed. 

It  is  said  that  the  surrogate  erred  in  excusing  the  executor 
from  an  investment  of  the  interest  upon  the  interest,  annually. 
The  will  required  that  the  interest  should  be  invested,  and  if  it 
had  been  made  to  appear  in  any  way  that  the  executor  has 
neglected  to  perform  the  duty  enjoined  upon  him  in  this  re-. 
spect,  and  that  the  fund  has  suffered  by  reason  of  it,  or  that 
more  could  have  been  realized  than  was  done,  then  he  should 
be  held  liable  for  compound  interest.  In  his  account  filed  with 
the  surrogate  he  states,  "  that  he.  has  tried  to  keep  the  fund, 
together  with  the  accrued  and  accumulated  interest,  invested 
and  re-invested,  as  required  by  the  will,  and  that  he  has  not 
been  able  to  do  any  better  than  is  stated  in  the  account.  This 
account  is  rendered  under  oath,  and  prima  facie  must  be  con- 
sidered as  mainly  correct,  until  assailed  or  impugned.  It  pre- 
sents the  facts,  however,  from  which  some  adequate  judgment 
may  be  formed  as  to  the  propriety  of  his  conduct  in  the  dis- 
position of  the  fund.  Now  it  is  somewhat  manifest  that  it 
would  not  be  a  very  easy  matter,  at  the  expiration  of  each  year, 
to  re-invest  the  precise  amount  of  compound  interest  received, 
so  as  to  keep  the  fund  in  the  process  of  constant  accumulation, 
and,  hence,  to  charge  him  with  a  strict  accountability  might 
inflict  severe  and  unnecessary  hardship. 

The  most  which  could  be  done  under  such  circumstances, 
would  be  to  fix  a  certain  amount  which  had  accumulated,  and 
charge  interest  upon  that  sum.  This  also  would  be  a  difficult 
matter  to  carry  out  practically,  and  in  the  absence  of  airy  evi- 
dence to  contradict  or  dispute  the  statement  of  the  executor,  to 
the  effect  that  he  has  done  the  best  he  could,  it  would  be  unjust 
to  charge  him  with  compound  interest  annually.  If  there  wras 
any  evidence  to  prove  that  the  excuse  offered  was  not  a  valid 
one,  or  any  aspect  of  the  case  which  indicated  neglect,  miscon- 
duct, or  a  want  of  good  faith,  there  would  be  the  strongest  rea- 
son for  holding  him  to  the  most  rigid  accountability.  Those 
intrusted  with  the  charge  of  trust  funds,  under  no  circumstances 
should  be  permitted  to  use  them  for  their  own  profit  and  pecu- 
niary advantage,  and  whenever  they  thus  violate  their  obliga- 
tions, the  courts  should  see  that  they  account  strictly  for  their 


288  ABBOTTS'  PEACTICE  REPORTS. 

Lansing  v.  Lansing. 

misconduct.  They  should  require  at  their  hands  the  greatest 
diligence  and  fidelity.  An  executor,  administrator,  or  trustee  is 
not  allowed  to  make  any  gain,  profit,  or  advantage  from  the  use 
of  the  trust  funds.  If  he  negligently  suffer  the  trust  moneys  to 
lie  idle  he  is  chargeable  with  simple  interest.  If  he  convert 
the  trust  moneys  to  his  own  use,  and  employ  them  in  his  busi- 
ness or  trade,  he  .is  chargeable  with  compound  interest  (Scheif- 
flien  v.  Stewart,  1  Johns.  Ch.,  620). 

In  Ackerman  v.  Emott  (4  Barb.,  626),  STRONG,  J.,  lays  down 
the  rule  that  compound  interest  is  only  allowed  in  cases  of 
gross  delinquency  or  of  an  intentional  violation  of  duty  (see 
also  TJtica  Ins.  Co.  v.  Lynch,  11  Pa.,  520 ;  Garness  v.  Gardner, 
1  Edw.  Ck.)  128 ;  Willard's  Eq.  Jurisp.,  614  ;  2  Kent  Com., 
302,  231 ;  T.  &  B.  Law  of  Trusts,  &c.,  594,  595). 

If  we  apply  these  principles  to  the  case .  at  bar,  I  think  a 
case  is  not  made  out  within  the  rule  laid  down.  It  is  not 
claimed  that  the  executor  used  the  funds  in  his  own  business, 
in  trade,  or  that  he  made  any  particular  profit  from  their  use, 
nor  is  there  anything  to  establish  that  he  was  guilty  of  any 
gross  delinquency  or  violation  of  duty.  In  fact,  he  -presents  a 
statement,  which,  if  it  can  be  relied  upon,  will  exonerate  him 
from  any  charge  of  wilful  omission  of  duty  or  misfeasance. 

While  trustees  are  held  to  great  strictness  in  the  management 
of  trust  funds,  the  court  will  deal  leniently  with  them  when  it 
appears  they  have  acted  in  good  faith,  and  if  no  improper 
motive  can  be  attributed  to  the  trustee,  the  court  will  excuse  the 
apparent  breach  of  trust,  unless  the  negligence  is  very  gross  (see 
T.  &  B.  Law  of  Trusts  &  Trustees,  599,  and  authors  there 
cited).  As  this  case  does  not  present  features  which  indicate  a 
departure  from  any  settled  rule  of  law,  or  bad  faith  on  the  part 
of  the  executor,, I  think  that  the  objection  is  not  available. 

It  is  further  urged  that  the  surrogate  erred  in  excusing  the 
executor's  deposit  of  funds  in  the  savings  bank  at  an  interest  of 
five  per  cent.,  payable  semi-annually.  By  the  will  the  executor 
was  required  to  invest  in  real  estate  securities.  It  is  not  denied 
that  it  was  difficult  at  the  time  when  the  money  was  paid  into 
his  hands  to  find  securities  of  this  character.  "Where  special 
directions  are  given,  they  should  be  pursued  if  possible.  If  they 
cannot  be  followed,  then  the  executor  should  look  out  for  such 
other  securities  as  the  Court  is  known-  to  have  adopted,  and 
when  it  has  authorized  and  sanctioned  any  particular  fund  as 


NEW  SERIES ;  VOL.  I.  289 

Lansing  v.  Lansing. 

a  safe  investment,  he  would  be  justified  in  making  the  invest- 
ment there. 

In  Ackerman  v.  Emott  (4  jBarb.,  626),  it  was  held  that  un- 
der the  general  power  to  make  investments,  the  Court  would 
sanction  any  investment  by  executors  and  trustees  in  loans  on 
real  security,  or  in  public  stocks  of  the  State,  or  of  the  United 
States,  or  in  the  loans  of  the  New  York  Life  and  Trust  Com- 
pany. It  was  said  in  this  case  that  the  law  regarded  the  cer- 
tainty of  an  income  more  than  its  magnitude.  PAEKEJB,  V.  C., 
who  originally  heard  the  case,  and  from  whose  decision  an 
appeal  was  taken,  remarks  :  "  The  Court  approves  of  a  deposit  in 
the  New  York  Life  and  Trust  Company,  until  a  safe  investment 
can  be  made  on  bond  and  mortgage."  The  executor,  here  be- 
ing unable  to  invest  upon  real  estate  security,  was  bound  to  dis- 
pose of  the  fund  in  the  best  manner  which  was  practicable  un- 
der the  circumstances  existing.  He  would  have  been  justified 
in  depositing  it  with  the  New  York  Life  and  Trust  Company  ; 
and  in  placing  it  elsewhere  than  in  such  securities  as  were 
sanctioned  by  the  Court,  he  incurred  the  hazard  of  being  made 
responsible  in  case  of  any  loss.  He  put  it  in  an  institution 
where  the  rate  of  interest  was  quite  as  large  as  it  would  have 
been  if  deposited  in  the  New  York  Life  and  Trust  Company. 

It  would  have  brought  a  larger  income  if  invested  in  govern- 
ment securities,  but  as  it  has  turned  out  it  would  have  been  no 
safer  than  where  it  was. 

It  appears  that  the  executor  exercised  a  sound  discretion  in 
thus  disposing  of  it,  and  as  he  has  acted  honestly,  and  as  it  does 
not  appear  that  he  could  in  any  other  way  have  disposed  of  the 
money  so  as  to  have  it  in  his  power  to  invest  it  in  real  estate 
securities,  and  as  no  such  securities  were  offered,  I  think  he  was 
justified  in  the  course  which  he  pursued.  He  might,  it  is  true, 
have  made  an  application  to  the  6ourt  for  instruction's,  but  he 
was  under  no  obligation  to  incur  such  an  expense,  and  was  not 
bound  to  do  so. 

A  trustee  or  executor  is  required  in  making  investments  to 
conduct  himself  faithfully,  and  to  exercise  a  sound  discretion,, 
and  when  he  observes  that  prudence  and  intelligence  which  is 
demanded  of  a  man  in  the  management  of  his  own  -affairs,  not 
in  reference  to  large  gains,  but  the  safety  of  the  principal,  and 
its  probable  income,  he  should  be  sustained. 

I  think  the  surrogate  erred  in  directing  the  payment  of  the 
N.  S.— VOL.  I.— 19. 


290  ABBOTTS'  PRACTICE  REPORTS. 

Mott  v.  Coddington. 

sum  due  to  the  appellant,  with  interest  at  five  per  cent.  There 
is  no  good  reason  why  the  amount  should  not  draw  interest  at 
the  usual  legal  rate  from  the  time  of  the  decree,  and  in  this 
respect  his  decree  should  be  corrected. 

With  the  views  I  have  expressed,  it  is  not  important  to  exam- 
ine some  other  questions  raised  on  the  argument. 

The  proceedings  must  be  remitted  to  the  surrogate,  with  di- 
rections to  correct  the  decree  in  the  particulars  named,  with 
costs  of  appeal  against  the  estate  of  the  testator. 

Order  accordingly. 


against  CODDINGTOK 
New  York  Superior  Court  /   General  Term,  November^  1863. 

YENUE'. — JURISDICTION. — CAUSE   OF   ACTION. — VENDOR   AND 
PURCHASER. 

A  cause  of  action  for  damages  for  injuries  to  real  property  by  the  negli- 
gence of  the  defendant,  is  necessarily  local ;  and  the  courts  of  this  State 
have  not  jurisdiction  of  such  an  action  relating  to  real  property  without 
the  State. 

But  a  cause  of  action  for  breach  of  a  covenant  to  convey  real  property,  is 
transitory ;  and  if  the  courts  of  this  State  obtain  jurisdiction  of  the  parties, 
they  can  entertain  jurisdiction  of  the  action. 

A  stipulation  in  a  deed  of  real  property,  or  in  another  instrument  between 
the  vendor  and  purchaser,  not  merged  in  the  deed,  that  the  vendor  shall 
retain  possession  for  a  time,  and  then  shall  deliver  possession  to  the  pur- 
chaser, does  not  create  the  relation  of  landlord  and  tenant  between  them 
during  such  period. 

The  premises  are  meanwhile  at  the  risk  of  the  purchaser;  and  the  vendor  is 
not  liable  to  him,  upon  such  contract,  for  a  loss  by  fire  before  the  delivery 
of  possession. 

Even  were  it  otherwise,  the  purchaser's  acceptance  of  the  deed,  after  the 
fire,  with  knowledge  of  the  loss,  would  extinguish  any  claim  to  indemnity. 

Appeal  from  an  order  denying  a  motion  made  by  the  plain- 
tiff, upon  the  judge's  minutes,  for  a  new  trial  upon  the  exceptions 
taken  at  the  trial. 


NEW  SERIES;  VOL.   I.  291 

Mott  v.  Coddington. 

The  action  was  brought  by  Garrett  S.  Mott  against  Israel 
Coddington  and  John  Herbert,  to  recover  damages  from  the  de- 
fendants, who  were  Israel  Coddington  and  John  Herbert,  for 
the  loss  by  fire  of  a  mill  and  machinery,  located  at  South  Bound 
Brook,  New  Jersey. 

In  June,  1861,  the  plaintiff  and  defendants  entered  into  an 
agreement,  whereby  the  defendants  agreed  to  convey  to  the 
plaintiff,  certain  premises  at  South  Bound  Brook,  upon  which 
was  situated  the  mill  in  question.  In  consideration  of  this  con- 
veyance, the  plaintiff  agreed  to  convey  to  the  defendants  certain 
premises  in  the  city  of  Brooklyn.  The  deeds  were  to  have  been 
exchanged  at  the  office  of  Tracy,  Wait  &  Olmstead,  in  the  city 
of  New  York,  "  on  or  before  the  22nd^day  of  July,  1861."  It 
was  further  agreed  that  the  defendants  should  retain  possession 
of  the  real  estate  at  Bound  Brook,  to  be  conveyed  to  them  as 
aforesaid,  until  the  19£A  day  of  September,  1861,  when  they 
should  deliver  possession  thereof  to  the  plaintiff.  The  deed  for 
the  Bound  Brook  property  was  executed  on  the  26th  of  June, 
and  for  the  Brooklyn  property  on  the  16th  of  July ;  but  the 
deeds  were  not  exchanged  until  some  time  afterwards,  being 
both  le/t  in  the  hands  of  Tracy,  Wait  &  Olmstead,  until  certain 
liens  on  the  Brooklyn  property  could  be  removed. 

While  the  deeds  remained  thus  in  escrow,  and  on  the  13th  of 
August,  1861,  the  defendants  then  being  in  possession  under  the 
agreement  between  the  parties,  the  mill,  machinery  and  out- 
buildings were  destroyed  by  fire.  The  deeds  were  exchanged 
on  the  16th  of  August,  after  the  fire,  at*  which  time  the  plaintiff 
gave  the  defendants  notice  in  writing  that  he  should  hold  them 
responsible  in  damages  for  the  loss  of  the  mill,  and  requiring 
them  to  replace  the  same,  prior  to  the  19th  of  September,  en- 
suing. 

The  deed  from  the  defendants  to  the  plaintiff,  of  the  mill  prop- 
erty, contained  this  clause:  "  Subject,  nevertheless,  to  the  posses- 
"  sion  of  said  premises  by  said  Coddington  and  Herbert,  until 
"  the  22nd  day  of  September,  1861,  when  they  agree  to  deliver 
"  possession  of  the  same  to  the  said  party  of  the  second  part,  or 
"  his  assignees." 

The  plaintiff  claimed  in  his  complaint  to  recover  :  First,  dam- 
ages for  a  breach  of  the  agreement  between  the  parties,  in  not 
delivering  possession  of  the  mill,  &c.,  on  the  19th  of  September, 
1861 ;  and  Second,  damages  for  the  loss  of  the  mill,  &c.,  caused 


292  ABBOTTS'  PKACTICE  REPORTS. 

Mott  v.  Ooddington. 

by  the  negligence  of  the  defendants  while  in  possession  thereof 
under  said  agreement. 

•  The  action  was  tried  before  Mr.  Justice  MONCKIEF,  and  a  jury, 
on  the  llth  day  of  March,  1863. 

At  the  close  of  the  plaintiff's  evidence,  the  counsel  for  de- 
fendant moved  to  dismiss  the  complaint  on  kthe  following 
grounds : 

1.  That  the  court  has  no  jurisdiction,  this  action  being  for  in- 
jury to  real  estate  in  the  State  of  New  Jersey. 

2.  The  plaintiff  must  show  that  he  was  seized  of  the  property 
when  the  injury  happened,  and  that  the  defendants  were  in  pos- 
session as  tenants  at  the  time  of  the  fire. 

3.  "When  the  plaintiff  accepted  the  deed,  after  the  fire  oc- 
curred, his  contract  ceased  to  be  the  subject  of  an  action,  there 
being  a  covenant  in  the  contract  to  keep  the  buildings  there. 

4.  There  is  no  proof  of  negligence  being  the  proximate  cause 
of  the  fire. 

The  justice  dismissed  -the  complaint,  and  the  plaintiff  ex- 
cepted. 

A  motion  for  a  new  trial  having  been  denied  at  special  term, 
the  plaintiff  appealed  from  the  order. 

A.  12.  Dyett,  for  plaintiff,  appellant. — I.  As  to  the  first 
ground  of  non-suit,  this  court  has  jurisdiction  of  this  action.  It 
is  not  an  action  local  to  New  Jersey.  The  action  is  founded 
and  based  on  the  contract,  which  was  made  in  this  city,  and 
was  to  be  performed  here.  The  fact  that  in  one  aspect  of 
the  cause  of  action  one  of  the  elements  of  it  is  negligence,  does 
none  the  less  make  it  an  action  on  the  contract,  which  was  ne- 
cessary as  the  basis  of  the  action  (4  Moo.  &  /&,  249  ;  13  N.  Y. 
[3  Kern^,  587;  Q'Abb.  Pr.,  165,  and  cases  cited  in  the  opinion; 
Strange,  614  ;  1  Wallace,  Jr.,  275,  and  cases  at  p.  282  ;  Story's 
Conflict  of  Laws,  §§  35  (d.)  555).  Besides,  the  cause  of  action 
in  the  complaint,  in  one  aspect,  is  entirely  based  on  the  non-per- 
formance, of  the  contract. 

II.  As  to  the  second  and  third  grounds  of  non-suit,  which  will 
be  considered  together: 

1.  The  action  was  brought  on  the  contract,  and  not  on  the  deed. 
Both  are  under  seal. 

2.  The  clause  in  the  contract  upon  which  the  action  is  brought 


NEW  SERIES ;  VOL.  I.  293 

Mott  v.  Coddington. 

is  an  independent  covenant,  and  by  its  terms  is  to  remain  in 
force  after  the  delivery  of  the  deeds. 

3.  The  delivery  and  acceptance  of  the  deeds  on  both  sides, 
did  not,  therefore,  merge  or  affect  the  covenant  referred  to,  nor 
was  it  so  merged  or  affected  by  the  clause  in  the  deed,  that  the 
conveyance  was  made  subject  to  the  defendants'  right  of  pos- 
session. 

4:.  The  last  named  clause  in  that  deed  was  drawn  and  exe- 
cuted (before  the  fire),  and  was  necessary  to  limit  the  covenants 
in  the  deed,  and  was  rather  a  confirmation  of  the  contract  than 
a  merger  of  it.  When  this  cause  of  action  arose,  the  defendants 
were  in  possession  under  the  contract  alone. 

5.  Upon  the  execution  and  delivery  of  the  agreement,  the 
plaintiff  became  the  equitable  owner  of  the  lands  and  mill,  ma- 
chinery, &c.,  and  the  defendants  held  them  merely  as  trustees 
(I  Sugden  on  Vendors,  190). 

6.  When  the  plaintiff  conveyed  his  lands  to  the  defendants, 
this  equitable  title  of  his  became,  if  possible,  stronger  and  of 
greater  force  than  before. 

7.  But  whether  the  plaintiff  waived  the  cause  of  action,  in- 
volves a  question  of  intent,  and  that  intent  was  a*  question  of 
fact  for  the  jury.      The  notice  referred  to,  which  was  given  in 
writing  at  the  time,  showed  beyond  all  question,  there  was  no 
intent  to  waive  the  cause  of  action. 

8.  But  the  notice  just  referred  to  as  matter  of  law,  saved  the 
cause  of  action  from  being  waived  by  the  plaintiff  or  merged  in 
the  deed  (Moore  v.  Westervelt,  1  Bosw^  366). 

9.  The  plaintiff  could  not  have  sued  until  after  the  19th  of 
September.      The  defendant  had  a  right  to  retain  possession 
until  that  time,  and  an  action  would  have  been  premature  if 
brought  before.     Non-constat,  but  the  defendants  would  rebuild, 
and  on  the  19th  September  delivered  possession  of  the  prem- 
ises in  good  order  and  condition.     They  had  a  right  to  do  so. 
By  what  right  could  the  plaintiff  refuse  to  accept  the  deed  of 
the  premises — he  did  not  accept  possession — because  the  defend- 
ants would  not  then  deliver  possession,  when  they  were  not 
bound  to  do  so  until  the  19th  September  following?    All  the 
plaintiff  could  do  was  to  give  the  notice  which  he  did  give. 

10.  The  deed  of  the  Bound  Brook  property  was  acknowledged, 
and  left  with  Tracy,  Wait  &  Olmstead  to  be  delivered  to  the 
plaintiff,  some  weeks  prior  to  the  fire,  and  if  it  did  not  then  take 


294  ABBOTTS'  PKACTICE  KEPOETS. 

Mott  v.  Coddington. 

effect  all  the  plaintiff  did  was  to  comply  with  the  condition 
upon  which  it  was  to  be  delivered  to  him,  in  order  to  render 
the  delivery  absolute,  and  this  is  all  he  did.  He  already  had 
the  equitable  title,  and  the  conveyance  of  the  legal  title,  stand- 
ing, at  the  worst,  in  escrow.  The  delivery  of  this  deed,  for  the 
purpose  of  vesting  title  in  the  lands  conveyed  to  the  plaintiff, 
and  sustaining  his  rights  in  and  to  the  same  and  his  cause  of 
action  here,  even  if  the  delivery  to  Tracy,  Wait  &  Olmstead 
were  in  escrow,  took  effect  from  the  time  of  its  delivery  to  them 
(18  Johns.,  544;  13  Id.,  285  ;  4  Id,,  230  ;  Shep.  Touch.,  58-59  ; 
Odell  v.  Wake,  3  Campb.,  394  ;  1  Johns.  Oases,  81 ;  1  Johns. 
Ch.,  288,  296,  304 ;  2  Mass.,  447 ;  Cruise's  Dig.,  tit.  32,  ch.  II., 
86  to  93 ;  9  Id.,  307 ;  3  Reports,  28,  29,  30). 

II.  It  clearly  follows,  therefore,  that  the -acceptance  of  the 
deed  by  the  plaintiff,  after  the  fire,  was  no  waiver  of  the  cause 
of  action  upon  which  he  seeks  to  recover,  rfor  was  that  cause  of 
action  merged  in  the  deed  (1  JSosw.,  366;  14  Eng.  L.  and, 
Eq.,  320). 

III.  As  to  the  third  ground  of  non-suit,  there  was  abundant 
evidence  to  go  to  the  jury  on  the  question  of  negligence — vide 
supra  (1  Larsons,  on,  Contracts,  618,*  note  (p.) ;   1   Campb.  N. 
/*.,  138;  IB.  Monroe;   6  Barf,  360;  21  Mo.,  374;  7  Hitt, 
533  ;  8  N.  Y.  [4  Seld.~],  375  ;  2  E.  D.  Smith,  413  ;  14  E.  L.  & 
K,  320  ;  8  B.  Monroe,  586). 

Charles  Tracy,  for  defendants,  respondents. — I.  The  Court 
has  no  jurisdiction  of  the  action,  if  it  is  for  injuries  to  real  estate 
in  New  Jersey  (3  JBlackstone's  Com.,  294 ;  1  BurrilVs  Prac., 
123,  notes  a.  and  1.;  2  Rev.  Stat.,  409,  §  2  ;  Watts  v.  Kinney^  6 
Bill,  82  ;  Ring  v.  McOoun,  3  Sandf.S.  Gt.,  524;  Code  of  Pro- 
ceedure,  §§  33, 123, 124). 

II.  If  this  is  an  action  upon  contract,  the  plaintiff  has  clearly 
no  right  to  recover  (Hasten  v.  Stratton,  7  Hill,  101,  104 ;  Wil- 
bur v.  Brown,  3  Denio,  356,  362).  (1.)  The  parties  were  mere 
vendor  and  vendee,  by  an  executory  contract  (Gardiner  v. 
Heartt,  1  N.  Y.  [1  Comst.~],  528).  (2.)  Even  a  landlord  has  no/ 
right  of  action  against  his  tenant,  for  buildings  burned  by  negli- 
gence of  the  tenant,  unless  there  is  an  express  contract  of  the 
tenant  to  sustain  it  (3  Blackstonds  Com.,  229,  et  nt.,  4 ; 
Countess  of  Shrewsbury^  Case,  5  Coke's  Rep.,  13 ;  The 
Countess  of  Salop  v.  Crampton  Crake  Elizabeth,  777,  784 ;  Co 


NEW  SEKIES ;  VOL.  I.  295 

Mott  v.  Coddington. 

Litt.,  section  7 ;  Stat.  Gloucester,  6  E.  5,  c.  5.  (3.)  The  vendee 
has  an  insurable  interest,  and  if  he  does  not  take  out  a  policy 
of  insurance  he  stands  as  his  own  insurer  (1  Suyden  on  Ven- 
dors (Wth  Eng.  ffl.),  467-469,  ch.  6,  §  2 ;  Paine  v.  Miller,  6 
Vesey,  349,  353  ;  Dart  on  Vendors,  117;  Gates  v.  Madison  Co. 
Mut.  Ins.  Co.,  5  jy.  Y.  [1  'Seld.~],  469.  (4.)  At  the  time  of  the 
fire  the  plaintiff  had  not  perfected  any  right  to  the  Bound  Brook 
property.  He  did  not  clear  the  title  of  the  Brooklyn  property 
from  taxes,  &c.H  until  after  the  fire.  He,  therefore,  had  nei 
ther  a  legal  title  to  the  mill,  nor  a  perfected  equitable  title. 
(5.)  Neither  the  contract  for  the  exchange,  nor  the  deed,  con- 
tains any  express  agreement  to  insure  the  buildings,  or  to  pre- 
serve or  renew  them.  (6.)  The  voluntary  acceptance  of  the 
deed  after  the  fire  occurred,*was  a  waiver  of  all  claims  to  restore 
or  renew  the  buildings,  and  the  plaintiff  is»  estopped  to  main- 
tain this  action  (Addison  on  Contracts,  172  ;•  Co.  Litt.,  352,  a). 
(7.)  The  contract  was  merged  in  the  deed,  and  became  ex- 
tinct (Jackson  v.  Camp,  1  Cow.,  605 ;  Houghtaling  v.  Lewis,  10 
Johns.,  297 ;  Howes  v.  Barker,  3  Id.,  506  ;  Wi^eck  v.  Wayne, 
16  N.  Y.,  532  ;  Morris  v.  Whitcher,  20  N.  Y.,  41). 

III.  It  was  not  proved  that  the  fire  was  caused  by  negligence 
of  the  defendants  (1  Parsons  on  Contracts,  603  ;  Edwards  on 
Bailments,  312 ;  Stevenson  v.  Yrooman,  18  Barb.,  250,  257 ; 
1  Greenleafs  Ev.,  §§  200,  209  ;  Hayne  v.  Epgers,  9  Bam.  & 
Cress.,  577,  587  ;  Grain  v.  Petrie,  6  Hill,  522,  524;  Armstrong 
v.  Percy,  5  Wend.,  535,  538  ;  1  Sound.  PI.  &  Ev.,  344 ;  2 
Greenleafs  Ev.,  §  256  ;  Butler  v.  Kent,  19  Johns.,  223,  228). 

BY  THE  COUKT.* — MONELL,  J. — The  second  cause  of  action 
stated  in  the  plaintiff's  complaint,  namely,  the  injury  occasioned 
by  the  negligent  act  of  the  defendants  while  in  possession  of  the 
premises,  this  court,  clearly,  has  not  jurisdiction  to  try.  This 
cause  of  action  is  for  an  injury  to  real  property ;  is  local  in  its 
nature,  and  must  be  tried  in  the  State  where  the  real  property 
is  situated.  The  distinction  between  local  and  transitory  ac- 
tions, as  stated  by  Ch.  J.  MARSHALL  (Livingston  v.  Jefferson,  1 
Brockenb.,  203)  is,  that  actions  are  to  be  deemed  transitory 
where  the  transactions  upon  which  they  were  founded  might 
have  taken  place  anywhere :  but  are  local  where  the  cause  of 

Present,  MONCKIEF,  ROBERTSON  and  MONELL,  JJ. 


296  ABBOTTS'  PRACTICE  KEPORTS. 

Mott  v.  Coddington. 

action  was  in -its  nature  necessarily  local  (Watts  v.  Kinney,  6 
Hill,  82).  Injury  caused  to  real  property  by  the  negligent 
act  of  another,  like  permissive  waste,  is  necessarily  local. 

If,  however,  the  action  for  a  breach  of  the  agreement  entered 
into  between  the  parties  can  be  sustained,  I  can  see  no  juris- 
dictional  difficulty  in  the  way.  .That  cause  of  action  is 
for  a  breach  of  a  covenant  contained  in  a  contract,  and  the 
action  is  necessarily  upon  the  contract ;  and  we,  having  ob- 
tained jurisdiction  over  the  parties,  can  entertain  jurisdiction 
of  the  cause  of  action.  Actions  upon  contract  have  always  been 
regarded  as  transitory,  and  are  equally  so,  whether  they  relate 
to  real  or  personal  property  (Sutphen  v.  Fowler,  9  Paige,  280 ; 
Massie  v.  "Watts,  6  Cranch,  148).  The  claim  is  for  damages  for 
not  performing  a  contract ;  the  recovery,  if  any,  must  be  per- 
sonal, and  cannot  affect  the  real  property. 

This  brings  me  to  the  remaining  question  in  the  case,  namely, 
lias  the  plaintiff  shown  any  cause  of  action  ? 

I  have  already  disposed  of  the  question  of  negligence,  being 
of  opinion  that  all  evidence  on  that  subject  was  inadmissible, 
this  court  not  hiving  jurisdiction  of  such  a  cause  of  action. 

I  do  not  think  the  relation  existing  between  the  parties  inter- 
mediate the  delivery  of  the  deed  and  the  19th  of  September, 
was  that  of  landlord  and  tenant.  The  defendants  owed  no  such 
duty  to  the  plaintiff  as  is  expressed  or  implied  in  cases  of  ten- 
ancy. Their  right  to  retain  possession  was  determined  by  the 
limitation  in  the  contract ;  but  it  was  a  mere  retention  of  pos- 
session, the  estate  proceeding  from  the  defendants,  which  was 
not  affected  or  defeated  by  the  subsequent  delivery  of  the  deed 
(Bogart  v.  Buckhalter,  2  Den.,  125 ;  Miller  v.  Avery,  2  Barb., 
582).  This  is  more  especially  so,  as  the  deed  continues  the 
right  in  express  terms. 

Although  possession,  or  the  right  of  possession,  follows  the  de- 
livery of  the  deed,  it  is  competent  for  the  grantor  to  reserve  the 
possession  to  himself  for  a  determinate  or  indefinite  period, 
either  in  the  deed,  or  by  a  cotemporaneous  instrument  not 
merged  in,  or  extinguished  by  the  deed.  Such  reservation  does 
not  constitute  a  tenancy. 

In  Provost  v.  Calder  (2  Wend.,  517),  the  grantor  reserved  to 
himself  and  his  heirs  the  exclusive  right  to  a  stream  of  water 
running  through  the  land,  and  subsequently  demised  the  privi- 
lege of  erecting  a  dam  and  using  the  water,  to  a  lessee.  The 


NEW  'SERIES  ;  VOL.  I.  297 

Mott  v.  Coddington. 

reservation  was  held  to  be  valid.  In  this  case  it  was  said,  a 
man  may  grant  a  messuage  with  the  appurtenances,  reserving 
one  of  them.  So,  too,  he  may  grant  a  tract  of  land,  reserving 
all  mines,  and  he  may  grant  a  tract  of  land,  reserving  all  mill 
sites,  and  such  a  reservation  is  valid. 

In  Dygert  v.  Matthews  (11  Wen d.,  36),  a  reservation,  out  of 
the  grant,  of  so  much  land  as  is  necessary  for  the  use  of  a  grist 
mill,  was  sustained. 

.  In  Jackson  v.  Swart  (20  Johns.,  85),  the  grantors  reserved  to 
themselves  the  use  of  the  premises  during  their  natural  lives, 
and  the  question  arose  whether  the  deed  was  void,  as  conveying 
a  fee  to  commence  in  futuro;  and  it  was  held  that  the  deed 
operated  as  a  covenant  to  stand  seized,  if  the  estate  of  the 
grantee  was  to  take  effect  after  the  deaths  of  the  grantors.  And 
the  case  of  Jackson  v.  Dunspagh  (1  Johns.  Cos.,  91),  is  referred  to, 
where  it  is  expressly  decided  that  a  deed  of  bargain  and  sale, 
founded  on  a  pecuniary  consideration,  to  take  effect  in  futuro, 
was  effectual. 

In  all  these  cases,  where  the  reservation  has  been  clear,  and 
the  intention  of  the  parties  undoubted,  it  has  been  sustained ; 
and  that,  too,  whether  it  was  of  a  part  only,  or  of  the  whole  of 
the  granted  premises. 

In  this  case  the  reservation  is  "of  the  possession,  which  .carries 
with  it  the  use  of  all  the  granted  premises  for  a  definite  period. 
And,  in  my  view,  it  is  not  material  whether  we  look  for  the  res- 
ervation in  the  contract  between  the  parties,  or  in  the  deed ;  the 
former,  as  we  have  seen,  not  being 'extinguished  by,  or  merged 
in  the  latter,  either  is  effectual  and  operative ;  although  the 
deed  may  be  resorted  to  as  furnishing  evidence  of  the  inten- 
tion to  make  the  reservation,  if  further  evidence  was  needed. 

If  it  is  true,  then,  that  the  reservation  of  the  possession  of  the 
whole  of  the  granted  premises  was  effectual,  and  the  defendants 
had  the  right  to  continue  to  occupy  them  until  the  19th  of  Sep- 
tember (or  the  22nd,  as  named  in  the  deed),  then  it  follows 
there  was  no  actual  delivery  of  the  premises,  nor  had  the  plain- 
tiff any  right  of  entry  at  the  time  of  the  happening  of  the  fire. 
In  short,  the  grantees  had  not  at  that  time  delivered,  nor  did 
they,  until  some  time  afterwards,  deliver  possession  of  the  prem- 
ises to  the  grantee.  The  contract  remained  executory,  and  the 
execution  and  delivery  of  the  deed,  though  it  conveyed  the 
legal  title,  was  only  a  partial  performance  of  the  contract,  and 


298  -ABBOTTS'  PRACTICE  REPORTS. 

Mott  v.  Coddlngton. 

did  not  carry  with  it  the  possession,  nor  the  right  to  the  posses- 
sion, until  the  expiration  of  the  period  reserved  to  the  grantors 
to  occupy  and  possess  the  premises. 

Such  possession  was  not  under,  nor  in  subordination  to,  the 
rights  of  the  grantee.  It  was  created  by  the  act  and  deed  of  the 
grantors,  and  originated  at  the  tfme  that  the  legal  estate  was 
passing  from  them.  Such  legal  estate,  however,  did  not  vest  in 
the  grantee  in  presenti ;  and  as  respects  the  possession,  was 
suspended,  or,  as  I  might  better  express  it,  did  not  take  effect, 
until  the  termination  of  the  right  which  the  grantors  had  re- 
served to  themselves. 

I  have  thus  endeavored  to  show  that  the  relation  of  landlord 
and  tenant  did  not  exist  between  the  parties ;  and  I  have  spent 
more  time  in  this  effort  than  I  should  have  done,  had  not  the 
able  argument  of  the  counsel  for  the  appellant  raised  a  doubt  in 
my  mind  on  the  subject.  But  I  cannot  yield  my  judgment  to 
his  convictions,  in  the  face  of  principles  and  authority  which  are 
to  me  most  satisfactory. 

The  act  of  the  parties,  as  evidenced  by  their  written  contract, 
was  the  selling  and  buying  of  the  premises  in  question ;  hence, 
the  relation  between  them  was  that  of  vendor  and  vendee.  The 
plaintiff,  as  vendee,  became  the  equitable  owner  of  the  estate, 
and,  according  to  well-settled  principles,  could  be  compelled  to 
pay  the  consideration,  even  though  the  estate  itself  should  be 
destroyed  between  the  date  of  the  agreement,  and  the  convey- 
ance (Sugden  on  Vendors  [Gth  Am.  Ed.~],  468).  From  the  time 
the  contract  was  stated  by  the  parties,  the  premises  were  at  the 
risk  of  the  vendee,  who  had  an  insurable  interest,  and  could 
have  protected  himself  from  loss  by  fire.  At  any  rate,  as  he  was 
entitled  to  any  benefit  which  might  accrue  to  the  estate  in  the 
interim  between  the  contract  and  -deed,  he  must  take  the  risk, 
and  bear  the. burthen  of  loss. 

But  even  if  this  were  not  not  so,  the  acceptance  of  the  deed  by 
the  plaintiff,  after  the  fire,  with  knowledge  of  the  loss,  would  ex- 
tinguish any  right  to  indemnity  he  otherwise  might  have  had 
(Paine  v.  Miller,  6  Ves.  Jr.,  349). 

I  think  the  plaintiff  has  failed  to  show  any  cause  of  action 
against  the  defendants,  and  that  the  justice  decided  correctly  in 
dismissing  the  complaint. 

The  order  appealed  from  should  be  affirmed,  with  costs. 


NEW  SERIES ;  VOL.  I.  299 

Mott  v.  Coddington. 

ROBERTSON,  J. — The  agreement  for  the  exchange  of  land  in 
this  case,  permitted  the  defendants  to  retain  possession  of  the 
real  estate,  to  be  conveyed  by  them,  until  a  time  subsequent 
to  that  when  the  destruction  of  the  mill  therein  complained 
of  in  this  case  occurred,  when  they  were  to  deliver  possession 
of  the  same  to  the  plaintiff .  The  deed  actually  delivered,  con- 
veyed the  premises  inpresenti,  subject  to  a  possession  of  them 
by  the  defendants,  until  three  days  after  the  time  fixed  in 
the  agreement,  when  they  agreed  to  deliver  possession  of  the 
premises  to  the  plaintiff.  No  rent  was  agreed  to  be  paid  for, 
such  occupation,  nor  was  anything  else  required  to  be  done 

•  from  which  it  could  be  inferred  that  the  relation  of  land- 
lord and  tenant  existed  between  the  parties.  The  question 
then  is,  whether  such  deed  operated  to  convey  the  estate,  to 
begin -only  from  the  date  fixed  in  such  clause,  leaving  the 
estate  in  the  defendants,  and  no  relation  subsisting  between 
the  parties  until  then,  or  whether  the  defendants  conveyed 
the  whole  estate  in  fee,  taking  back  an  estate  for  the  period 
during  which  they  were  to  retain  possession. 

An  exception  must  be  part  of  the  thing  granted,  wherein 
it  differs  from  a  reservation,  which  is  not  part  of  it,  but  some 
new  thing  issuing  out  of  it  (Craig  v.  Wells,  1  N.  Y.  [1  Comst.~], 
315).  Words  of  reservation  may  create  an  exception,  however 
(Provost  v.  Calder,  2  Wend.,  517 ;  Borst  v,  Empie,  5  N.  Y. 
[1  Seld."],  33),  and  sometimes  an  implied  covenant  or  estoppel 
(Case  v.  Haight,  3  Wend.,  632).  On  the  other  hand,  words  of 
exception  may  create  a  reservation  (Dygert  v.  Matthews,  1 
Wend.,  35).  An  exception  must  be  certain,  and  what  would 
otherwise  be  an  exception  may  be  construed  as  a  reservation 
in  order  to  prevent  its  being  void  for  uncertainty  (Thompson 
v.  Gregory,  4=  Johns.,  81),  but  it  must  be  construed  as  the 
former,  if  it  can  be  reduced  to  certainty  (Jackson  v.  Verrail- 
yea,  6  Cow.,  677).  The  reservation  of  an  estate  for  life  in  the 
grantors  of  an  estate  in  fee  (husband  and  wife),  although  void 
as  such,  was  held  to  create  a  covenant  to  stand  seized  for  the 
use  of  the  survivor  (the  wife),  although  a  conveyance  in  fee  to 

|  take  effect  in  futuro  might  be  void  (Jackson  v.  Swart,  20 
Johns.,  85),  except  under  the  statute  of  uses  (Jackson  v. 
Dunspagh,  1  Johns.  Cas.,  91). 

It  is  not  material  whether  there  can  be  a  technical  reserva- 
tion of  an  estate  in  the  premises  or  not,  provided  the  deed 


300  ABBOTTS'  PEACTICE  KEPOKTS. 

White  v.  Schuyler. 

can  be  construed  so  as  to  prevent  an  estate  from  vesting 
until  some  future  day.  The  Revised  Statutes  make  it  the 
duty  of  courts  to  carry  into  effect  the  intent  of  parties  in  an 
instrument  affecting  real  estate,  so  far  as  it  pan  be  gathered 
from  the  whole  (1  JRev.  Stat.,  748,  §  2).  There  can  be  no 
doubt,  that  by  the  deed  in  question  in  this  case,  the  defend- 
ants intended  only  to  create  an  estate  in  the  plaintiff,  to  be- 
gin at  the  end. of  their  possession.  No  relation,  therefore,  of 
landlord  and  tenant  existed,  and  no  right  of  action  could 
accrue  for  waste. 

The  plaintiff  had  an  insurable  interest  in  the  buildings 
burnt,  but  the  defendants  had  not  (McLaren  v.  Hartford  Fire 
Ins.  Co.,  5  N.  Y.  [1  Seld^  151).  They  were  not  bound  to 
restore  them  either  under  the  agreement  (Sugden  on  Vendors, 
Qth  Am.  Ed.,  468),  or  the  deed,  which  contains  merely^,  cov- 
enant to  deliver  possession  of  the  premises,  but  not  in  the 
same  condition  as  they  were  at  its  date. 

It  is  not  necessary,  therefore,  for  me  to  express  any  opinion 
as  to  the  ability  of  the  plaintiff  to  maintain  an  action  in.  the 
State  for  permissive  waste  on  land  in  New  Jersey. 

I  therefore  concur  in  the  judgment  of  affirmance. 


^ 

WHITE  against  SCHUYLEK. 

Supreme  Court,  Third  District;  General  Term,  September, 

1865. 

SPECIFIC  PERFORMANCE. 

Specific  performance  of  an  agreement  to  transfer  stock,  may  be  decreed, 
•where  the  contract  to  convey  is  clear,  and  the  uncertain  value  of  the 
stock  renders  it  difficult  to  do  justice  by  an  award  of  damages. 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  rendered 
under  the  direction  of  Mr.  Justice  MILLER,  on  a  trial  before 
him,  without  a  jury,  at  the  Albany  Circuit,  in  May,  1864. 


NEW  SERIES  ;  VOL.  I.  301 

White  v.  Schuyler. 

The  action  was  brought  by  John  S.  White  against  Thomas 
Schuyler,  to  compel  tjie  defendant  to  transfer  to  the  plaintiff 
one  hundred  and  eighty-two  shares  of  the  capital  stock  of 
"  Schuyler's  Line  Steam  Tow  Boat  Association,"  and  to  pay 
him  certain  dividends  received  thereon,  which  the  defendant 
claimed  to  hold  as  his  own  property,  by  virtue  of  a  contract 
dated  June  2d,  1862.  .  The  judgment  was  for  a  specific  per- 
formance of  this  contract.  No  costs  of  the  action  were  given 
to  either  party  as  against  the  other. 

The  leading  features  of  the  case,  as  found  by  the  justice  who 
tried  the  cause,  were  as  follows : 

Prior  to  the  2d  of  June,  1862,  the  plaintiff  was  the  owner 
of  one  hundred  and  eighty-two  shares  of  the  capital  stock  of 
<f  Schuyler  Line  Steam  Tow  Boat  Association,"  of  the  par 
value  of  eighteen  thousand  two  hundred  dollars,  for  which 
a  certificate  had  been  duly  issued,  and  on  the  2d  of  June,  in 
consideration  of  fifteen  thousand  dollars  paid  by  the  defendant 
on  account  of  the  plaintiff,  the  stock  was  delivered  to  the 
defendant,  and  thereupon  he  gave  the  plaintiff  an  agreement 
in  writing,  to  the  effect  that  Schuyler  would,  on  the  1st  day 
of  February,  1863,  upon  payment  by  .White  to  him  of  sixteen 
thousand  five  hundred  dollars,  and  indemnifying  him  against 
any  loss  on  account  of  having  endorsed  his  paper,  sell  and 
convey  to  White,  the  one  hundred  and  eighty-two  shares  of 
stock  in  question,  with  any  dividend  which  it  should  earn  in 
the  year  1862  ;  and  if,  at  that  time,  t!he  value  of  the  stock  was 
more  than  sixteen  thousand  five  hundred  dollars,  the  excess 
in  value  should  be  paid  to  Mr.  H.  Read,  receiver  of  the  Bank 
of  the  Capital,  on  the  indebtedness  of  White  to  said  receiver, 
if  the  said  indebtedness  should  not  sooner  be  paid.  That  on 
the  10th  of  February,  1863,  the  defendant  received  nine 
thousand  one  hundred  dollars  for  a  dividend. on  said  stock,  and 
on  the  10th  of  February,  1864,  a  further  dividend  of  five 
thousand  four  hundred  and  sixty  dollars. 

That  on  the  part  of  the  defendant  there  was  a  waiver  of 
strict  performance  by  the  plaintiff  on  the  day  named,  and  the 
time  was  extended,  and  within  the  extended  time  the  plaintiff 
tendered  the  defendant  sixteen  thousand  five  hundred  dollars, 
and  demanded  the  stock  and  dividends,  and  the  defendant 
refused  to  transfer  the  stock,  or  pay  over  the  dividends. 

That  the  defendant  had  not  sustained  any  loss  by  reason  of 


302      ABBOTTS'  PRACTICE  REPORTS. 

White  v.  Schuyler. 

endorsing  the  plaintiff's  paper,  and  was  not  under  any  liability 
on  that  account,  and  the  indebtedness  of  the  plaintiff  to  the 
receiver  of  the  Bank  of  the  Capital  had  been  fully  paid  and 
discharged. 

Upon  these  facts  found,  a  judgment  was  directed,  that  upon 
payment  of  sixteen  thousand  five  hundred  dollars,  with  interest 
from  February  1st,  1863,  deducting  the  dividends  received  by 
the  defendant,  the  defendant  transfer  the  stock  to  the  plaintiff, 
with  all  dividends  and  accumulations  since  the  10th  of  Feb- 
ruary, 1864. 

The  testimony  was,  in  some  respects,  conflicting,  especially  in 
regard  to  the  extension  of  the  time  for  performance,  and  to 
what  period  such  extension 'was  made. 

John  H.  Reynolds,  for  the  plaintiff,  respondent. 
Ira  Shafer,  for  defendant,  appellant. 

BY  THE  COURT.* — HOGEBOOM,  J. — No  other  objections  to  the 
enforcement  of  the  specific  performance  of  this  contract  are 
made,  than  the  want  of  mutuality,  and  the  failure  on  the  part 
of  the  plaintiff  to  perform  or  offer  to  perform,  within  the  stipu- 
lated time.  Sections  729,  736  of  Story's  Equity  Jurisprudence, 
vol.  2,  are  cited  in  support  of  the  proposition  as  to  want  of 
mutuality,  but  I  do  not  see  that  they  are  directly  applicable. 
On  the  contrary,  the  same  author,  at  section  736,  a.  states  as 
follows, — "But  it  is  not  necessary  to  the  specific  performance  of 
a  written  agreement  that  it  should  be  signed  by  the^party 
seeking  to  enforce  it ;  if  the  agreement  is  certain,  fair  and  just, 
in  all  its  parts,  and  signed  by  the  party  sought  to  be  charged, 
that  is  sufficient ;  the  want  of  mutuality  is  no  objection  to  its 
enforcement"  The  following  authorities  are  cited  in  support 
of  this  doctrine.  Woodward  v.  Aspinwall,  3  Sandf.  Ch.,  292 ;  In 
re  Hunter,  1  Edw.  Oh.,  1 ;  McCrea  v.  Purmort,  16  Wend.,  460  ; 
Clason  v.  Bailey,  14  Johns.,  484. 

It  is  not  objected  that  the  contract  relates  to  a  class  of  pro- 
perty, in  regard  to  which  it  is  not  usual  to  direct  a  specific  per- 
formance, upon  the  ground  that  the  party  has  an  adequate 
remedy  at  law  in  damages.  But  if  such  objection  had  'been 
taken,  I  think  if  ought  not  to  have  been  sustained.  1.  Because 

*  Present^  HOGEBOOM,  MILLEB  and  INGALLB,  JJ. 


NEW   SERIES;  VOL.   I.  303 

White  v.  Schuyler. 

the  parties  evidently  contemplated,  and  specially  contracted 
for  a  re-conveyance  of  the  stock'.  2.  Because,  as  well  on  ac- 
count of  the  uncertain  value  of  the  stock  in  market,  and  the 
infrequent  sales  of  it,  as  the  varying  character  and  success  of 
the  business  which  the  stock  represented,  it  was  difficult,  if  not 
impossible,  to  do  justice  between  the  parties  in  an  award  of 
damages.  .  These  are  controlling  reasons  in  equity  for  a  specific 
performance  (Philips  v.  Berger,  2  jBarb.,  609;  2  Story's  Eg., 
Tit.  Specific  Performance,  §§  716-718 ;  6  Johns.  Ch.,  222 ; 
Seymour  v.  Delancy,  3  Cow.,  445). 

The  other  objection  to  a  specific  performance,  to  wit :  the 
omission  to  perform  within  the  time  to  which  the  right  of  per- 
formance was  extended  by  the  stipulation  or  understanding,  and 
conduct  of  the  parties, — involves  a.question  of  fact.  The  judge 
at  the  special  term  before  whom  the  cause  was  tried,  has 
examined  that  question  with  care,  has  evidently  given  it  much 
attention,  and,  notwithstanding  the  criticisms  of  the  learned 
.  counsel  for  the  appellant,  was,  I  think,  warranted  in  his  conclu- 
sions upon  a  view  of  the  testimony,  which,  on  scrutinizing  the 
witnesses,  he  was  permitted  to  take. 

I  do  not  deem  it  necessary  to  review  the  facts,  nor  to  restate 
the  conclusions,  which  the  testimony  justifies.  I  am,  myself, 
of  opinion  that  upon  the  plaintiff's  version  of  the  conduct 
and  understanding  of  the  parties,  the  contract  was  fairly  open 
for  performance  up  to  the  28th  of  February,  and  that  the  un-' 
equivocal  refusal  of  the  defendant  to  perform  on  that  day,  either 
rendered  an  absolute  tender  and  offer  to  perform  before  suit 
brought  unnecessary,  or  made  the  tender  on  the  16th  of  March  • 
as  preliminary  to  the  institution  of  a  suit  for  specific  perform- 
ance in  season,  especially  as  the  court  below  did  not  charge 
the  defendant  with  costs. 

I  am,  therefore,  of  opinion,  if  we  are  to  put  the  same  inter- 
pretation upon  the  character  of  the  contract  that  the  judge  did 
at  the  trial  of  the  cause,  that  the  judgment  should  be  affirmed 
with  the  costs  of  appeal. 

This  makes  it  unnecessary  to  examine  the  other  question 
made  in  the  case,  to  wit :  whether  the  whole  transaction  was 
not  in  the  like  nature  of  a  security  for  the  loan  of  money. . 

If  that  questi6n  be  open  for  examination  here,  and  doubt  in 
regard  to  the  other  aspect  of  the  case  made  it  expedient  for  the 
plaintiff  to  prevent  it,  I  should  be  loth  to  enter  upon  the  ex- 


304:  ABBOTTS'  PEACTICE  REPORTS. 

Turner  v.  Smith. 

amination  after  an  adverse  conclusion  by  the  court  below,  and 
a  decision  in  favor  of  the  plaintiff  on  other  grounds,  and,  in 
general,  should  think  it  better  to  remand  the  case  for  the  pur- 
pose of  re-examination,  and  the  presentation  of  a  distinct  ex- 
ception or  review  on  that  point  by  the  party  aggrieved. 

I  am  for  affirming  the  judgment  of  the  court  below  with  costs. 


TURNER  against  SMITH. 

New  York  Common  Pleas ;  Special  Term,  May,  1866. 
INJUNCTION. — EXECUTION  AGAINST  ONE  PARTNER. 

An  action  will  lie  by  a  partner,  to  enjoin  an  individual  judgment  creditor 
of  the  copartner  of  the  plaintiff,  from  selling  upon  execution  the  interest 
of  the  copartner  in  the  partnership  assets,  where  it  is  made  to  appear  by 
the  complaint  that  the  co-partner  whose  interest  has  been  seized  has  no 
interest  in  fact  in  the  assets,  and  the  plaintiff  offers  to  submit  to  an  ac- 
counting to  show  this  to  be  the  case. 

It  seems,  that  since  the  abolition  of*  the  distinction  between  legal  and  equit- 
able forms  of  procedure,  the  court  out  of  which  the  execution  was  issued 
should  stay  proceedings  thereon,  under  such  circumstances,  without  put- 
ting the  parties  to  an  action. 

Motion  to.  dissolve  an  injunction. 

The  action  was  brought  by  Alfred  "W.  Turner  against  Bernice 
B.  Smith,  James  Turner  and  John  Kelly,  the  sheriff  of  the  city 
and  county  of  New  York,  to  enjoin  the  defendants,  Kelly  and 
Smith,  from  selling,  -on  execution  against  James  Turner,  the  in- 
terest of  the  latter  in  the  property  of  the  firm  of  James  Turner 
&  Son,  of  which  the  plaintiff  was  the  junior  member. 
The  allegations  of  the  complaint  were  as  follows : 
That  the  plaintiff  is  engaged  in  the  business  of  selling  oils  at 
wholesale,  at  No.  78  Maiden  lane,  in  the  city  of  New  York,  in 
company  with  James  Turner,  under  the  firm  name,  of  "James 
Turner  &  Son."  That  said  Turner  &  Son  now  have  on  hand 


NEW  SEEIES;  VOL.  I.  305 

Turner  v.  Smith. 

at  their  said  place  of  business,  at  No.  78  Maiden  lane,  a  quantity 
of  oils  {designating  the  kinds,  and  total  value],  which  is  all  the 
property  owned  by  said  firm. 

That  said  firm  is  indebted  for  liabilities  incurred  in  the  prose- 
cution of  their  said  business  to  the  full  value  of  the  goods  on 
hand,  on  good  and  valid  debts  due  against  said  copartnership. 

That  said  James  Turner,  this  plaintiff's  partner,  is  justly  in- 
debted to  said  copartnership,  for  money  drawn  from  said  firm 
for  his  support  and  maintenance,  over  and  above  all  profits,  in- 
terests and  gains  in  said  copartnership,  and  over  and  above  all 
interests  in  any  of  the  copartnership  property,  in  the  sum  of 
more  than  four  thousand  dollars,  and  that  upon'  a  fair  and  just 
accounting,  and  closing  up  of  said  partnership  affairs,  it  would 
be  found  that  said  James  Turner  lias  no  interest,  either  at  law 
or  in  equity,  in  any  of  the  assets  or  property  of  said  firm ;  but, 
on  the  countrary,  his  indebtedness  to  said  firm  exceeds  his  in- 
terest in  said  partnership  assets  and  property,  to  the  amount  of 
more  than  four  thousand  dollars. 

That  said  firm,  notwithstanding  the  •  embarrassments  of  said 
James  Turner,  is  in  good  credit,  and  is  constantly  receiving  and 
selling  goods,  and  have  reasonable  prospects  of  doing  a  good 
trade  in  the  future,  and  of  making  money. 

That  said  defendant  Smith,  in  December,  1862,  recovered  a 
judgment  in  the  Supreme  Court  of  the  State  of  New  York, 
against  said  James  Turner,  for  one  thousand*  two  hundred 
and  seven  dollars  and  seven  cents,  on  a  demand  in  no  way 
connected  with  the  partnership  matters  of  said  firm.  That  on 
the  20th  day  of  February,  inst,  the  said  defendant,  Smith, 
caused  an  execution  to  be  issued  against  said  James  Turner,  and 
on  the  21st  day  of  February,  inst.,  directed  the  sheriff  of  the 
city  of  New  York  to  levy  upon  the  goods  of  said  firm,  which  the 
said  sheriff  did. 

That  the  said  defendant,  Smith,  now  threatens  to  have  said 
goods  of  said  firm  advertised  and  sold,  and  has  caused  to  be 
placed  in  the  store  of  the  said  firm  at  No.  78  Maiden  lane, 
aforesaid,  a  person  who  forbids  this  plaintiff,  or  any  one  acting 
under  him,  from  selling,  or  disposing  of,  or  meddling  with,  said 
goods. 

That  the  said  defendant,  Sheriff  Kelly,  aforesaid,  threatens  to 
proceed  under  the  directions  of  his  co-defendant,  Smith,  to  sell 
the  said  goods  of  said  firm. 

N.  S.— YOL.  I.— 20. 


306  ABBOTTS'  PRACTICE  REPORTS. 

Turner  v.  Smith. 


This  plaintiff  further  says,  that  said  firm  has -notified  the 
plaintiff,  or  his  attorney,  of  the  willingness  of  said  firm  to  sub- 
mit their  books,  papers  and  affairs  to  the  inspection  of  said 
Smith,  to  the  end  that  he  may  ascertain  whether  the  said  James 
Turner  has  any  interest  in  said  firm  that  could  be  taken,  either 
at  law  or  in  equity,  to  pay  the  individual  debts  of  said  James 
Turner. 

And  this  plaintiff  alleges,  en  information  and  belief,  that  it  is 
the  purpose  and  aim  of  said  Smith  to  harass  and  vex  and  in- 
jure the  business  of  said  firm  unnecessarily,  because  of  the  in- 
ability of  one  of  said  firm  to  pay  his  individual  debts. 

This  plaintiff  further  says,  that  it  will  work  irreparable  injury 
•to  this  plaintiff,  and  destroy  the  credit  and  business  of  said  firm 
to  have  said  goods  of  said  firm  sold  on  such  execution,  or  to 
have  the  same  removed  or  interfered  with  by  said  sheriff  for 
the  purpose  of  working  out  any  supposed  interest  of  the  said 
James  Turner  under  said  execution  of  said  Smith. 

"Wherefore  this  plaintiff  prays  this  honorable  court  to  restrain 
and  enjoin  the  said  defendants,  their  agents,  attorneys  or  em- 
ployees, from  selling  or  meddling  with  said  goods,  or  in  any 
manner  interrupting  the  business  of  said  firm,  until  an  account 
can  be  taken  in  equit}7,  to  the  end  that  it  may  be  ascertained 
whether  the  said  James  Turner  has  any  interest  in  said  copart- 
nership goods  which  could  be  applied  on  said  execution. 

The  plaintiff  also  prays  that  all  proceedings  on  said  execution, 
so  far  as  any  attempt  may  be  made  to  sell  the  property  of  said 
firm,  may  be  stayed. 

The  plaintiff  prays,  also,  such  other  and  further  relief  in  the 
premises  as  shall  be  deemed  just  and  equitable. 

The  plaintiff  makes  no  personal  claim  against  said  sheriff  for 
any  damages,  nor  for  any  costs  in  this  suit. 

Upon  this  complaint,  the  plaintiff  obtained  a  preliminary 
injunction.  The  sheriff  answered,  admitting  the  execu- 
tion, and  that  he  levied  pursuant  to  its  directions,  the  property 
being  the  only  property  of  the  judgment  debtor  known  to  him 
in  the  county ;  and  denied  any  intent  to  harass,  and  any  knowl- 
edge, etc.,  of  the  other  allegations. 

Upon  these  pleadings,  the  defendants  now  moved  to  dissolve 
the  injunction. 

Brown,  Hall  &  Vanderpoel,  for  the  sheriff;  and  Arthur 
Gardner  y  for  the  defendant  Smith,  in  support  of  the  motion. 


NEW  SERIES  ;   VOL.  I.  307 

Turner  v.  Smith. 

Amos  G.  Hull,  opposed. — I.  The  defendants  are  premature 
in  their  motion.  It  cannot  be  made  until  all  the  defendants 
have  answered  (1  Barb.  Ch.,  639  ;  1  Paige,  164  ;  2  Johns.  Ch., 
149). 

II.  The  separate  estate  or  interest  of  the  copartner,  in  any 
of  the  copartnership  property,  is  only  his  share  of  that  part  of 
the  copartnership  effects,  or  of  the  proceeds  thereof,  which  re- 
ma^n  after  the  debts  of  the  firm,  and  the  demands  of  his  copart- 
ners as  such  are  satisfied  (Buchan  v.  Sumner,  2  Barb.  Ch., 
165 ;  Muir  v.  Leitch,  7  Barb.,  340).  The  correct  practice  to  be 
pursued  in  a  case  like  this,  is,  to  do  as  the  plaintiff  has  done, 
viz. :  to  obtain  an  order  staying  proceedings  on  the  execution 
until  an  account  can  be  taken  in  equity  (Scrugham  v.  Carter, 
12  Wend.,  131).  If  -the  parties  desire  it  the  partnership  ac- 
counts should  all  be  liquidated  before  any  sale  on  the  execution 
(2  Ves.  (&  •Beame,  300.  See  also  the  cases  of  Williams  &  Gibbs 
v.  Ginning,  2  Johns.,  280 ;  Watson  v.  Taylor,  2  Ves.  &  Beams  ; 
15  Ves.,  559,  560). 

HI.  The  equities  of  the  complaint  not  only  are  not  denied, 
but  are  admitted.  Sheriff  Kelly  admits  that  it  was  his  pur- 
pose to  sell  the  interest  of  James  Turner.  That  is  precisely  what 
we  allege,  and  it  is  to  prevent  that,  until  an  account  in  equity 
can  be  taken,  that  we  invoke  the  power  of  this  court.  The  an- 
swer denies  only  on  information  and  belief.  We  allege  the  facts 
in  our  complaint  positively. 

A  complaint  made  upon  information  and  belief  will  not  sup- 
por^  an  injunction  (Hecker  v.  The  Mayor,  18  Abb.  Pr.,  369). 
Now  if  information  and  belief  will  not  sustain  an  injunction, 
then  information  and  belief  will  not  sustain  an  answer  that 
seeks  to  dissolve  it. 

BEADY,  J. — The  complaint  in  this  action  alleges  substantially, 
that  the  partner  whose  interest  has  been  seized  under  execution, 
has  no  interest  in  fact  in  the  assets  of  the  copartnership,  and  the 
plaintiff  is  willing  to  refer  the  subject  at  once,  that  it  may  be 
investigated  and  determined.  This  seems  to  me  to  be  a  very 
reasonable  mode  of  procedure,  more  particularly  when,  as.in  this 
case,  the  plaintiff  has  filed  a  consent  that  the  reference  be  pro- 
ceeded with  at  once.  Injunctions  in  these  cases  do  not  meet 
with  favor  from  the  courts. 

In  Mowbray  v.  Lawrence  (13  Abbott's  Pr.,  317 ;  S.  C.,  22  How., 


308  ABBOTTS'  PKACTICE  REPORTS. 

Turner  v.  Smith. 

107),  it  is  said  that  authorities  in  this  State  are  adverse  to  the  inter- 
ference of  a  court  of  equity  by  injunction  to  restrain  the  sale  of  the 
interest  of  one  partner  in  copartnership  property,  on  judgment  and 
execution  against  him,  to  collect  an  individual  debt ;  but  the 
refusal  to  grant  the  injunction  in  that  case  was  predicated  of  the 
fact  that  it  did  not  appear  by  the  averments  in  the  complaint 
that  the  debtor  had  no  interest  which  the  creditor  should  be 
allowed  to  reach  by  a  sale  on  his  execution.  The  case  of 
Philips  v.  Cook  (24  Wend.,  389),  cited  by  Justice  LEONARD  in 
the  case  mentioned,  is  not,  however,  an  authority  against  the 
exercise  of  the  equity  power  invoked  by  this  action.  It  was  an 
action  of  trespass,  and  the  court  held  that  it  could  not  be  main- 
tained against  the  plaintiff  for  seizing  the  partnership  property 
to  satisfy  an  execution  against  one  of  the  partners,  and  deliver- 
ing the  property  sold  to  the  purchaser.  The  subject  under  con- 
sideration was  elaborately  discussed  by  Justice  COW^N,  and  the 
power  and  practice  of  courts  of  equity  in  such  cases  to  some 
extent  exemplified. 

He  said  there  is  no  doubt  of  the  equitable  rule  in  England, 
New  York,  and  most  of  the  States,  that  though  the  sheriff 
may,  at  law',  levy  on  and  sell  the  right  of  the  individual 
partner,  which  shall  pass  absolutely  to  the  purchaser,  yet  he 
takes  subject  to  an  account  between  the  partners,  which,  if 
it  eventuate  against  him,  his  purchase  may  go  for  nothing. 
That,  however,  is  his  own  look  out.  It  is  no  reason  why  the 
creditor  should  be  deprived  of  his  legal  right  to  sell,  or  the 
purchaser  of  his  legal  right  to  buy. 

The  case  of  Moody  v.  Payne  (2  Johns.  Ch.,  548),  is*  not 
authority,  as  I  understand  it,  against  the  exercise  of  the  equity 
power.  The  Chancellor  seems  to  have  entertained  the  opinion 
that  the  creditor  could  only  sell  the  interest  of  the  individual 
partner,  subject  to  the  rights  of  the  joint  creditors,  and  not  the 
property  itself;  the  rule  being  in  equity  that  the  partnership 
accounts  should  all  be  liquidated  before  a  sale  on  execution 
(Watson  v.  Taylor,  2  Ves.  &  Bea.;  Walter  v.  Muth,  16  Johns., 
107  w.\  and  he  expressed  the  opinion,  therefore,  that  if  any 
sacrifice  was  made  by  the  sale  of  the  interest  of  one  partner 
by  reason  of  the  uncertainty,  it  affected  only  that  partner. 

It  was  said  by  Chief  Justice  SAVAGE,  in  Scrugham  v.  Carter 
(12  Wend.,  134),  that  if  the  sheriff  by  virtue  of  an  execution 
against  one  of  several  partners,  takes  possession  of  the  property, 


NEW  SERIES  ;  VOL.  I.  309 


Turner  v.  Smith. 


an  action  at  law  does  not  lie  against  him.  The  court  from 
which  the  execution  issued  would  stay  proceedings  upon  it  to 
give  time  to  have  an  account  taken  in  equity.  In  Parker  v. 
Piston  (5  Bos.  &  P.,  288),  the  defendant  was  one  of  two  part- 
ners, and  the  creditors  applied  to  extend  the  return  of  the  fieri 
facias,  the  object  being  to  prevent  the  partnership  goods 
from  being  sold  until  an  account  could  be  taken  of  the  several 
claims  upon  them.  The  court  were  of  the  opinion  that  there 
was  no  ground  for  this  interposition ;  that  the  safest  line  of 
conduct  for  the  sheriff  to  pursue,  was  to  put  some  person  in 
possession  of  the  defendant's  property  as  vendee,  leaving  him 
and  the  parties  interested  to  contest  the  matter  in  equity, 
when  a  bill  might  be  tiled,  stating  that  he  had  taken  posses- 
sion of  the  property  and  praying  that  it  might  not  be  disposed 
of  until  all  claims  were  arranged. 

In  Chapman  v.  Koops,  reported  in  the  same  volume  of 
•  JBos.  &  P.,  289,  a  similar  application  was  denied,  but  Lord 
ALVANLEY,  Ch.  J.,  said,  among  other  things :  "  We  are  desired 
to  restrain  the  plaintiff's  execution  because  it  is  alleged  that 
he  stands  in  the  shoes  of  a  partner,  who  would  not  have  a 
right  to  molest  the  other  partners  until  all  accounts  between 
them  had  been  settled.  But  if  the  other  partners  wish  to  take 
advantage  of  this  circumstance,  they  ought  to  file  a  bill  in 
equity  against  the  vendee  of  the  sheriff,  or  they  may  buy  in 
the  property  when  put  up  for  sale. 

CHAMBRE,  J.,  said  the  short  objection  to  this  application  is 
that  the  court  cannot  direct  a  partnership  account  to  be  taken 
without  assuming  a  jurisdiction  that  does  not  belong  to  it. 

The  case  of  Philips  v.  Cook,  supra,  being  a  determination  of 
the  right  of  the  sheriff  to  sell  the  property  of  the  co-partner- 
ship on  an  execution  against  one  of  the  partners,  and  deliver 
it  to  the  vendee,  makes  the  interposition  of  equity  in  a  proper 
case  eminently  just.  The  right  mentioned  does  not  commend 
itself  to  our  best  consideration.  It  does  not  seem  to  be  fair 
that  property  owned  by  several  should  be  taken  away  on  a 
process  against  one,  where  that  one,  in  consequence  of  his 
relation  to  the  others,  financial  and  otherwise,  may  have  little 
or  no  interest  in  it.  The  firm  creditors  have  superior 
right  and  equity,  and  the  partners  stand  'in  better  position 
towards  the  property  as  against  each  other  than  the  individual 
creditor.  The  interest  of  each  is  only  the  share  that  remains 


310  ABBOTTS'  PK£CTICE  EEPOKTS. 

Turner  v.  Smith. 

after  the  partnership  accounts  are  taken.  There  is  little  doubt 
that  the  right  under  discussion  is  one  asserted  by  the  courts 
of  law  to  avoid  encroachment  upon  equity  jurisdiction,  and  it 
is  not  the  only  instance  in  which  the  division  of  jurisdictions, 
legal  and  equitable,  has  led  to  useless  and  absurd  circumlocu- 
tion. There  is  no  doubt  that  equity  had  the  power  to  inter- 
fere in.  a  case  like  this,  and  would  do  so,  and  since  the  blend- 
ing of  the  different  tribunals  in  one  under  our  present  system, 
there  is  no  reason  why  a  stay  should  not  be  granted  on  an 
execution,  as  stated  by  Justice  WILLARD,  in  accordance  with 
the  suggestion  of  SAVAGE,  Ch.  J.,  in  Serugham  v.  Carter, 
supra. 

The  plaintiff  has,  however,  brought  his  action  in  equity,  and 
alleges  that  there  is  nothing  to  be  sold. 

Assuming  that  to  be  so,  it  would  be  very  unjust  to  allow 
the  partnership  property  to  be  sold  and  delivered,  leaving  the 
plaintiff  to  pursue  the  vendee,  who  would  not  be  obliged  to 
give  security,  and  might  not  only  dispose  of  the  .property,  but 
be  utterly  insolvent. 

I  think  there  are  reasons  why  the  right  to  sell  and  deliver 
should  never  have  been  given.  The  right  to  sell  the  interest, 
leaving  the  purchaser  to  ascertain  what  it  was,  and  a  rule 
requiring  a  reference  to  be  submitted  to  by  all  partners  would 
have  subserved  the  ends  of  justice  better  than  the  existing 
rule. 

In  this  case  I  think  the  plaintiff  entitled  to  an  injunction, 
and  the  defendant  to  the  reference  which  the  plaintiff  tendered, 
if  they  feel  disposed  to  require  it  at  the  present  stage  of  the 
action. 


NEW  SERIES ;  VOL.  I.  311 

Philipe  v.  James. 


. 

PHILIPE  against  JAMES. 

New  York  Superior  Court;  General  Term,  February,  1865. 
BANKRUPTCY.  —  PLEADING  . 


a  defendant  relies  on  a  foreign  discharge  in  bankruptcy,  as  a  bar,  or 
on  his  having  entitled  himself  to  a  certificate  in  bankruptcy,  by  which  the 
cause  of  action  is  abated,  he  must  set  forth  not  only  the  statute,  but  the 
certificate  or  discharge,  and  the  prior  proceedings  ^vrhich  warranted  the 
granting  of  it  ;  or,  if  no  discharge  or  certificate  has  been  granted,  the  facts 
in  the  proceedings  relied  on,  as  an  accord. 

Of  the  requisite  proceedings  to  obtain  a  discharge  under  the  English  insol- 
vent laws  ;  and  what  must  be  pleaded  in  setting  up  a  discharge  under 
such  statutes. 

Appeal  from  a  judgment  on  demurrer  to  answer. 

The  defendant,  Edwin  James,  was  sued  by  John  Philipe  and 
George  Hilder,  as  trustees  under  a  deed  made  by  the  defendant 
in  England. 

The  defendant  answered,  admitting  the  alleged  contract,  and 
setting  up  certain  proceedings  in  bankruptcy  in  England. 
The  answer  alleged  the  presenting  of  a  petition  to  the  Court  of 
Bankruptcy,  with  the  concurrence  of,  and  signed  by,  one-third 
in  number  and  value  of  the  defendant's  creditors  ;  that  the  court 
appointed  a  trustee,  to  whom  he  surrendered  all  his  estate,  and 
the  other  and  further  proceedings,  there  taken  in  accordance 
with  the  said  act,  which,  as  he  alleged,  entitled  him  to  receive 
a  certificate  from  the  said  court,  discharging  him  from  his  debts. 
It  did  not  state  that  such  a  certificate  was  granted,  nor  that  he 
was  examined  in  respect  to  the  matter  of  said  petition  by  a  com- 
missioner in  bankruptcy,  or  that  such  commissioner  directed  a 
meeting  of  all  his  creditors,  or  that  any  meeting  of  them  was 
held,  or  that  the  requisite  or  any  number  of  creditors  agreed  to 
accept  any  arrangement  or  composition. 

The  plaintiffs  moved  at  special  term  in  1863,  to  compel  thf 
defendant  to  make  the  answer  more  definite  and  certain,  and 


312  ABBOTTS'  PKACTICE  KEPOETS. 

Pbilipe  v.  James. 

the  motion  was  granted  by  the  chief  justice,  who  rendered  the 

following  opinion : 

- 

BOSWOETH,  CH.  J. — Where  a  defendant  relies  upon  a  discharge 
in  bankruptcy  in  another  country,  as  a  bar  to  the  action,  or,  as 
in  this  case,  on  a  certificate  of  a  commissioner  in  bankruptcy, 
under  Act  of  7  &  8  Yic.,  ch.  TO,  entitled  "An  Act  for  facilitat- 
ing arrangements  between  debtors  and  creditors,"  he  must  set 
forth  in  his  answer : 

first.  The  statute  under  which  the  alleged  proceedings  were 
had,  and.  certificate  was  granted  (Holmes  v.  Broughton,  10 
Wend.,  75  ;  Minse  v.  Douglass,  5  N.  T.  [1  Seld.~],  447).  That 
is  not  done  in  this  case,  and  the  answer  is  therefore  defective. 

Second.  The  answer,  besides  pleading  the  certificate,  must  set 
forth,  with  particularity,  such  prior  proceedings  as  warranted 
the  granting  of  the  certificate. 

If  no  certificate  has  been  granted,  and  enough  has  been  done 
to  extinguish  the  plaintiffs'  cause  of  action,  the  material  facts 
relied  upon  as  affecting  the  extinguishment,  or  the  defendant's 
discharge  from  liability,  must  be  pleaded. 

If  a  certificate  has  been  granted,  it  must  be  pleaded,  and 
other  facts  be  alleged,  which,  if  true,  authorizes  the  granting  of 
it  (Thomas  v.  E-obinson,  3  Wend.,  267,  617 ;  Loudo  v.  Sampson, 
2  Smith,  659 ;  1  Chitttfs  P.,  514,  515 ;  3  Id.,  913  ;  Barnes 
v.  Harris,  3  Barb.,  603;«Ayres  v.  Covill,  18  Barb.,  260; 
Alcard  v.  Wesson,  14  English  L.  and  Ec[.,  360;  16  JSarb., 
481). 

The  motion  must  be  granted. 

The  defendant  then  served  an  amended  answer,  in  which,  after 
alleging  the  presentation  of  the  petition,  he  stated.that  in  the  pe- 
tition was  "  set  forth  a  proposal,  which  was  the  only  proposal  this 
defendant  could  make,  for  the  future  payment  or  the  compromise 
of  such  debts  and  engagements,  and  which  proposal  was  truly  and 
"bona-fid*,  made,  and  which  this  defendant  was  then  ready  and 
willing  to  carry  out  and  fulfill.  And  this  defendant  further  says, 
that  more  than  one-third  in  number  and  value  of  his  said  cred- 
itors assented  to  such  proposal.  An4  the  said  petitioner  further 
prayed  that  such  proposal  should  be  carried  into  effect,  under  the 
superintendence  and  Control  of  the  said  court,  and  that  he,  the  said 
petitioning  debtor,  should,  in  the  meantime,  be  protected  from  ar- 


NEW   SEEIES;  VOL.   I.  313 

Philipe  v.  James. 

rest  by  order  of  tlie  said  court,  which  said  petition  is  on  the  files 
of  the  said  court  in  bankruptcy,  at  London,  in  England." 

The  amended  answer  further  alleged  that  the  commissioner 
in  bankruptcy  approved  the  proceedings,  and  found  "  that  the 
proposal  was  reasonable,  and  proper  to  be  executed  under  the  di- 
rection of  the  said  court,"  and  that  he  called  a  meeting  of  all 
the  creditors  to  act  on  it. 

"  That  at  such  meeting  of  creditors,  where  this  defendant  was 
not  present,  nor  was  he  required  by  law  to  be  present,  but  was 
represented  by  his  attorney  and  solicitor,  the  major  part  in 
number  and  value  of  his  said  creditors,  whose  debts  exceeded 
twenty  pounds,  did  assent  to  the  proposal  of  the  said  petitioning 
debtor.  This  defendant  cannot  set  forth  the  date  or  time  when 
the  second  meeting  of  the  said  creditors  was  called  by  the  said 
president,  but  is  informed  and  believes  that  such  second  meet- 
ing was  duly  called  and  held,  and  that  due  notice  was  given  to 
the  said  creditors,  in  the  same  manner  and  form  as  for  the  first 
meeting;  but  he  states  that  at  such  second  meeting  one-third  in 
number  and  value  of  the  creditors  of  the  petitioning  debtor  were 
present,  either  in  person  or  by  an  authorized  agent.  *  *  * 
That  at  such  second  meeting  of  the  creditors,  three-fifths  in 
number  and  value  of  all  the  creditors  then  present  did  agree, 
resolve  and  accept  such  arrangement  as  was  assented  to  at  the 
first  meeting,  and  that  the  terms  thereof  were  reduced  into 
writing,  and  that  the  same  were  duly  signed,  and  that  the  same 
were  binding  and  of  full  force  against  the  plaintiffs  in  this  ac- 
tion, both  at  law  and  in  equity,  under  the  powers  and  provisions 
of  the  hereinbefore  recited  act,  and  that  their  agents  and  solici- 
tors had  due  notice,  under  the  provisions  »f  the  the  said  act,  of 
the  several  meetings  of  creditors  held  as  before  mentioned.  The 
defendant  further  states,  that  within  fifteen  days  after  the  pas- 
sage of  the  above  resolution  lind  agreement  to  accept  his  propo- 
sition, the  same  was  submitted  to  the  commisioner  acting  in  the 
matter  of  the  said  petition,  who  decided  and  ruled  the  same  to 
be  reasonable,  and  proper  to  be  executed  under  the  direction  of 
the  court,  and  caused  the  same  to  be  filed  and  entered  of  record 
thereon. 

"  And  this  defendant  further  answers  and  says,  that  he  fully 
complied  with  all  the  provisions  of  the  said  act,  and  became  en- 
titled to  receive  a  certificate  from  the  said  court,  discharging 
him  from  his  debts  and  liabilities  as  fully  and  effectually  as  if 


314  ABBOTTS'  PEACTICE  EEPOETS. 

Philipe  v.  James. 

the  same  were  a  certificate  of  conformity  under  the  statutes  re- 
lating to  bankrupts.  That  this  defendant,  not  having  applied 
for  the  said  certificate,  does  not  plead  the  same  as  a  bar  or  ex- 
tinguishment of  the  debt  of  the  plaintiffs  for  which  this  action 
is  brought,  but  answers  and  says,  that  the  plaintiffs  are  not  en- 
titled to  maintain  this  action  against  him ;  that  the  plaintiffs, 
who  were  then  creditors  of  this  defendant,  in  respect  of  the  same 
debt  for  which  this  action  is  brought  in  this  court,  were  bound 
by  the  arrangement  made  and  entered  into  by  the  creditors, 
and  the  necessary  majority  of  the  same,  under  the  provisions.of 
the  act  under  which  the  petition  was  presented  to  the  Court  of 
Bankruptcy  in  England ;  that  the  plaintiffs  are  not  entitled  to 
maintain  this  action  against  this  defendant  until  all  the  proceed- 
ings taken  in  the  said  Court  of  Bankruptcy  in  England  are 
vacated  and  annulled ;  that  the  plaintiffs  are  not  entitled  to 
maintain  this  action  againt  this  defendant  until  the  estate,  effects 
and  property  ceded  and  given  up  by  this  defendant  for  the 
plaintiffs  with  the  other  creditors  of  this  defendant  are  restored' 
and  returned  to  him ;  that  the  proposal  and  arrangement  made 
and  entered  into  with  the  creditors  of  this  defendant,  under  the 
powers  and  provisions  of  the  said  act,  are  binding  in  law  upon 
the  plaintiffs,  until  the  same  is  reversed  and  annulled  by  the 
said  court ;  that  under  the  provisions  of  the  said  act,  the  said  ar- 
rangement is  an  accord  and  satisfaction  in  law  of  all  damages 
sustained  by  the  plaintiffs,  by  the  breaches  of  covenants,  by  this 
defendant,  contained  in  the  deed  upon  which  the  action  is 
brought,  and  which  have  accrued  up  to  the  time  of  the  com- 
mencement of  this  action." 

The  statute  referred  to  was  set  forth  at  length  annexed  to  the 
answer  as  amended. 

To  this  answer  the  plaintiff  demurred  for  insufficiency. 

The  plaintiff  demurred  to  the  amended  answer,  and  judg- 
ment was  given  for  him  on  the  demurrer,  with  leave 
to  defendant  to  amend  by  alleging  that  he  had  obtained  a 
certificate  of  discharge,  or  that  the  plaintiff  had  participated 
in  property  delivered  to  the  Kegistrar  or  official  assignee,  if  so 
advised. 

From  this  order  the  defendant  appealed  to  the  general  term. 


NEW  SERIES;  VOL.  I.  315 

Philipe  v.  James. 
J.  TF.  Ashmead,  for  the  defendant,  appellant. 

Isaac  Van  Winkle,  for  the  plaintiff,  respondent ; — Cited 
Trary  v.  Dakin,  7  Johns.,  75 ;  Cruger  v.  Cropsey,  3  Id.,  242 ; 
Sackett  v.  Andross,  5  Hill,  330  ;  Yan  Elten  v.  Hunt,  6  Id., 
313 ;  and  cases  cited  by  Ch.  Justice  BOSWORTH. 

BY  THE  COURT.* — ROBERTSON,  CH.  J. — The  statute  under 
which  the  defendant  claims  to  have  been  released  from  all 
responsibility  to  the  plaintiifs  (7  &  8  Viet.,  ch.  70),  was  made 
for  the  benefit  of  insolvents,  who  were  not  traders  subject 
to  the  English  bankrupt  acts.  Proceedings  thereunder  can 
only  be  instituted  by  the  insolvent  himself. 

Their  object  is  a  forced  discharge  of  the.  debtor  by  part  of 
his  creditors,  who  are  reluctant,  on  the  adoption  by  a  certain 
proportion  of  all  of  them,  of  terms  of  composition  or  com- 
promise offered  by  him,  modified  by  them,  and  sanctioned  by 
the  court  in  which  the  proceedings  are  taken.  As  to  those 
creditors,  therefore,  who  have  not  expressly  assented  to  such 
discharge  upon  such  terms,  either  at  the  meetings  held  for  the 
purpose,  or  by  receiving  part  of  the  debtor's  estate,  under 
such  compromise,  it  is  an  involuntary  discharge  of  their  claims 
by  operation  of  law,  and  none  of  the  features  of  an  accord  and 
satisfaction  belong  to  it. .  This  statute  is  very  similar  in 
&11  respects  to  the  allowance  of  a  concordat  by  the  French 
Code  Civil  (Articles  505-516),  except  that  the  latter  may  be 
compulsory.  In  the  nature  of  the  petition  under  it,  and 
objections  allowed  thereto,  it  also  resembles  our  Insolvent  Act. 

Such  English  statute  provides  for  the  making  by  the  insol- 
vent of  "  such  proposal  as  he  is  able  to  make  for  the  future 
payment  or  compromise  of  his  debts  and  engagements  "  (§  1), 
and  for  several  meetings  of  his  creditors  for  the  acceptance  or 
modification  of  such  proposal,  and  to  secure  the  certainty  and 
mode  of  its  being  carried  into  effect,  before  any  official  cer- 
tificate or  protection,  similar  to  that  given  by  the  statutes  of 
bankruptcy,  is  to  be  given  by  the  officer  before  whom  such 
proceedings  are  had.  •  A  certain  proportion  of  creditors  in 
number  and  value  (one-third)  are  required  to  sign  such  peti- 
tion (§  1).  The  first  of  such  meetings  is  to  be  convened  by 

order  of  the  commissioners  to  whom  the  application  is  made 

i  — . . — '. .; 

*  Present,  ROBERTSON,  CH.  J.,  GAKVIN  and  McCuNN,  JJ. 


316  ABBOTTS'  PEACTICE  BEPORTS. 

Philipe  v.  James. 

(§  2),  and  the  second  by  the  president  of  such  first  meeting" 
appointed  by  such  commissioners  (§  3) ;  in  case  at  such  meet- 
ing a  majority  of  all  the  creditors  in  number  and  value,  or  a 
certain  proportion  in  numbers  or  value  (nine-tenths),  whose 
debts  exceed  a  certain  sum  (£20),  assent  to  such  proposal  or 
a  modification  thereof  (§  4).  The  second  meeting  is  required 
to  have  the  same  proportion  of  creditors  in  number  and  value 
present  as  was  required  to  sign  the  petition,  to  make  their 
proceedings  of  any  avail  (§  5).  A  "  resolution  or  agreement 
adopted  at  such  second  meeting  to  accept  the  arrangement  or 
composition  assented  to  at  the  first  meeting,  if  reduced  to 
writing  and  signed  by  a  certain  proportion  of  the  creditors  in 
number  and  value  then  present  (three-fifths),  or  a  certain 
other  proportion  in  value  or  in  number  to  those  whose  debts 
exceed  a  certain  sum  (£20),  is  declared,  if  confirmed  as  therein 
required,  to  be  binding  upon  the  insolvent  and  all  his  creditors 
"who  had  notice  of  both  such  meetings  "  (§  5).  Such  "  resolution 
or  agreement "  is  required  to  be  submitted  to  the  acting  com- 
missioner within  a  certain  time,  and  he,  in  case  he  "'think  it 
reasonable  and  proper  to  be  executed  under  the  direction  of 
the  court,"  is  to  cause  it  to  be  filed  and  entered  of  record  (§  6). 
An  indorsement  by  him  on  a  certificate  of  such  filing,  of  a 
protection  of  the  debtor  from  arrest  is  to  have  that  effect,  except 
in-  certain  cases  of  fraud  committed  by  him  (Ib .).  A  like  pror 
tection  from  arrest  may  be  given  by  such  commissioner  on  the 
presentation  .of  the  petition  (§  7).  Such  commissioner  may 
also  in  case  of  any  difficulty  in  the  execution  of  such  resolution 
or  agreement,  convene  special  meetings  of  the  creditors,  at 
which,  if  one-third  of  them  in  number  and  value  are  present,  or 
if  the  commissioner  approve  of  their  action,  a  majority  of  those 
present  may,  by  resolution,  confirm,  alter,  or  annul  the  whole, 
or  any  part  of  such  prior  resolution  or  agreement  with  like 
effect  as  if  part  thereof  (§  11).  It  is  not  until  the  last  meeting  of 
creditors  after  such  resolution  or  agreement  is  carried  into 
effect,  and  the  creditors  "  satisfied  according  to  its  tenor,"  and 
when  the  trustee  appointed  by  the  court  has  fully  performed 
his  trust,  that  the  commissioner  is  to  give  a  certificate  of  the 
filing  of  the  petition,  and  the  making  and  performance  of  the 
resolution  or  agreement  of  creditors,  which  is  to  be  as  operative 
as,  a  certificate  of  conformity  under  the  statutes  of  bankruptcy 
(§§  12,  13).  During  the  period  between  the  second  meeting 


NEW  SEEIES ;  YOL.  I.  '  %  317 

Philipe  v.  James. 

and  such  final  meeting,  the  insolvent  may  be  brought  before 
the  commissioner,  and  examined  touching  his  property  and 
his  creditors  (§  10). 

It  would  be  rather  difficult  to  plead  the  agreement  assented 
to  at  the  first  and  second  meetings  of  the  creditors,  if  either 
altered,  amended,  or  annulled  at  a  special  meeting  called 
under  the  eleventh  section,  as  an  accord  and  satisfaction,  or 
any  other  defence.  There  is  nothing  in  the  statute  releasing 
the  debtor  from  liabilitjtupon  the  adoption  of  such  first  agree- 
ment, although  he  may  be  thereupon  protected  from  arrest. 
It  is  very  evident  the  words  in  the  fifth  section  "  shall  thence- 
forth be  binding  and  of  full  force,"  mean  nothing  more  than 
that  such  resolution  shall  have  such  force  as  is.  given  to  it  by 
such  statute,  not  only  against  tho>e  assenting  to  it,  but  also 
those  who  were  notified  of  such  meetings,  otherwise  it  would 
be  inconsistent  with  the  power  of  altering  or  annulling  it 
given  by  the  subsequent  sections. 

The  very  able  discussion  by  the  learned  judge,  who  delivered 
the  opinion  of  the  court  in  the  case  of  The  Matter  of  Bonaffe 
(23  N.  JT.,  185,  et  seq.}  of  the  entire  dependence  of  the 
effect  of  the  concordat,  under  the  French  Code  of  Commerce, 
in  discharging  the  debtor  from  his  debts  on  its  terms,  is  just 
as  applicable  to  the  compromise  offered  under  the  statute  ill 
question. 

The  answer  in  this  case  does  not  even  set  forth  the  nature 
of  the  proposal  made  by  the  defendant  on  the  presentation  of 
his  petition,  so  that  this  court  can  see  that  it  was  for  a-  dis- 
charge from  liability,  nor  whether  it  was  for  the  future  pay- 
ment or  for  the  compromise  of  his  debts,  but  only  in  the  alter- 
native ;  nor  does  it  allege  that  any  notice  of  the  second 
meeting  was  given  to  the  plaintiffs,  but  only  to  "  said  creditors," 
which  follows  a  statement  of  an  assent  of  a  majority  of  cred- 
itors to  the  defendant's  proposal,  and  "  to  their  agents  and 
solicitors."  Whereas,  the  statute  in  question,  by  its  fourth 
section,  clearly  provides  only  for  personal  notice,  unless  a 
substituted  notice  is  ordered.  No  appointment  of  a  trustee  or 
surrender  to  him  of  property  is  alleged  in  such  answer. 

Such  answer  claims  that  the  defendant  was  entitled  to  re- 
ceive a  certificate  of  compliance  with  the  statute,  discharging 
him  from  liability  as  under  the  Bankrupt  Act,  whose  terms, 
•however,  it  entirely  omits  to  state.  That  could  not  be  ascer- 


318  -  ABBOTTS'  PKACTICE  REPORTS. 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council . 

tained  except  by  the  judicial  declaration  of  the  commissioner 
after  a  performance  of  the  terms  of  the  compromise,  and  a  dis- 
charge of  the'  trustee,  and  no  alteration  of  the  terms  of  the 
original  proposal  by  any  general  meeting  of  creditors,  or  a 
special  one  ordered  under  the  eleventh  section  of  the  Act. 
The  purpose  of  such  Act  being,  as  stated  in  its  title,  merely  to 
"  facilitate  arrangements  between  creditors  and  debtors,"  not 
to  discharge  insolvents,  no  one  could  properly  be  entitled  to 
such  certificate  until  such  final  meeting  of  creditors,  and  dis- 
charge of  the  trustee  after  the  proposal  for  compromise  had 
been  carried  out.  I  do  not  perceive  that  the  language  of  the 
opinion  delivered  before  in  this  court  sanctions  any  interpreta- 
tion of  the  English  statute,  as  authorizing  an  extinguishment 
of  the  debt,  by  the  mere  approbation  of  the  debtors'  proposal 
by  the  court  after  the  second  meeting.  The  withholding  of 
such  certificate  until  such  final  settlement,  and  giving  no  effect 
to  any  of  the  proceedings  until  that  time,  is  conclusive  as  to 
the  purport  of  the  statute. 

How  far  the  amendment  allowed  would  better  the  defend- 
ant's defence  is  not  necessary  to  decide. 

As  it  stands,  it  is  insufficient,  and  the  judgment,  therefore, 
must  be  affirmed  with  costs. 


THE  PEOPLE,  on  the  relation  of  THE  MARKET  COM- 
MISSIONERS, against  THE  COMMON  COUNCIL 
OF  NEW  YORK. 

Supreme   Court,  First  District;    General   Term,  February, 

1866.  • 

MUNICIPAL  CORPORATION.— MANDAMUS. 

Under  a  statute  (Laws  of  1865,  ch.  180)  making  it  the  duty  of  a  municipal 
corporation  to  create  a  stock  or  fund  to  an  amount  and  upon  terms  of  pay- 
ment fixed  in  the  statute,  and  requiring  the  comptroller  of  the  corpora- 
tion to  prepare  and  issue  the  stock,  and  sell  the  same, — the  corporation 


NEW  SERIES;  VOL.  I.  319 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

have  a  duty  to  perform  in  creating  the  stock  by  ordinance,  before  the 
comptroller  can  issue  it. 

A'mandamus  to  compel  the  corporation  to  create  the  stock,  is  properly  ad- 
dressed to  the  Common  Council,  although  the  corporation  are  designated 
in  the  statute  as  the  Mayor,  Aldermen,  and  Commonalty  of  the  city 

Appeal  from -an  order  made  at  special  term,  granting  a  man- 
damus. 

The  application  was  made  under  the  act  of  the  Legislature 
(Session  Laws  of  1865,  211,  ch.  180)  to  compel  the  Common 
Council,  of  the  city  of  New  York  to  create,  by  the  passage  of 
an  ordinance  to  that  effect,  the  seventy-five  thousand  dollars  of 
"  Market  Stock,"  provided  by  the  fifth  section  of  the  statute. 

The  defendants  read  no  counter  affidavits  below,  and  the  ap- 
plication was  disposed  of  on  the  showing  made  by  the  relators. 

It  appeared  by  the  moving  papers : 

1.  That  a  demand  on  behalf  of  the  relators  hadlbeen  made 
upon  the  Common  Council,  for  the  creation  of  the  stock,  in  the 
month  of  May,  1865. 

2.  That  no  steps  were  ever  taken,  by  the  Common  Council, 
towards  a-  compliance  with  the  demand,  save  that  the  matter  in 
both  boards  was  referred  to  some  committee. 

3.  That  by  their  non-action,  the  work  of  the  commission  had 
been,  and  still  was,  delayed. 

4.  That  the  property  specified  in  the  act,  as  the  site  of  the 
proposed  market,  was  purchased  in  the  name  of  the  corporation, 
in  1857,  for  that  purpose,  at  a  cost  of  nearly  two  hundred  thou- 
sand dollars,  and,  by  legislative  action,  dedicated   "  to  the  use 
and  purpose  of  a  market ;"  and  that  down  to  the  present  time  it 
had  remained  unoccupied  and  unproductive  (see  Lowber  Case, 
7  Abb.  Pr.j  158,  and  Proceedings  of  Aldermen  and  Council- 
men,  Aug.  16, 1856 ;  Nov.  6,  1856  ;  Feb.  18, 1857). 

5.  That  the  relators  had  no  remedy  except  by  mandamus. 

By  the  statute  in  question  it  is  enacted  that  "  The  Mayor,  Al- 
dermen and  Commonalty  of  the  city  of  New  York  are  hereby 
authorized  and  directed  to  create  a  public  fund  or  stock,  to  be 
denominated  ' Market  Stock '"  [here  follow  the  amount,  terms, 
<#<?.],  "  the  said  Mayor,  Aldermen  and  Commonalty  being  here- 
by authorized  and  directed  to  pledge  the  faith  of  the  city  and 
county,  and  the  same  is  hereby  specificallj7  pledged  for  the  re- 
demption of  the  said  stock,  and  the  several  parts  thereof,  when 


320  ABBOTTS'  PEACTICE  REPORTS. 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Cmincil. 

the  same  shall  become  due  and  redeemable -under  the  provisions 
of  this  section,  by  tax  upon  the  estates,  real  and  personal,  in  the 
city  of  New  York,  subject  to  taxation. 

"  The  comptroller  of  the  said  city  of  New  York  shall,  within 
thirty  days  after  being  required  in  writing,  by  said  cominfe- 
jioners,  so  to  do,  prepare  and  issue  the  said  stock  *  *  *  to 
the  highest  bidder  therefor,  and  the  proceeds  thereof  be  forth- 
with deposited  with  the  chamberlain  of  said  city  of  New  York, 
to  the  credit  of  the  commissioners  appointed  under  this  act." 

JKichard  0' Gorman  and  W.  O.  Trull,  for  the  defendants. — I. 
No  action  upon  the  part  of  the  Common  Council  is  requisite  or 
necessary  to  the  creation  of  the  stock  in  question,  (a)  The  act 
fixes  the  amount  of  the  stock,  the  rate  of  interest,  and  the  time 
when  payable ;  and,  also,  the  time  when  the  stock  shall  be  re- 
deemable, and  provides  a  fund  for  the  redemption  of  the  stock, 
and  pledgls  the  faith  and  credit  of  the  city  and  county  for  its 
redemption.  Nothing  remains  for  the  Common  Council  to  do, 
and  it  would  be  the  merest  surplusage  for  that  body  to  enact  an 
ordinance  providing  for  the  creation  of  a  stock  which  is  already 
provided  for  and  created  by  statute.  The  remedy  of  the 
relators  is  apparent.  Relying  upon  the  provisions  of  the  fifth 
section  of  the  act  they  should  demand  of  the  comptroller  a 
compliance  with  the  requirements  of  the  sixth  section,  which 
makes  it  his  duty  to  issue  the  stock  within  thirty  days  after 
its  issue  is  demanded  by  the  commissioners.  Should  the  Com- 
mon Council  enact  an  ordinance  in  the  precise  words 
of  the  fifth  section  of  the  act  of  1855,  it  would  add  nothing  to 
the  existence  of  the  stock.  The  true  construction  of  the  fifth 
and  sixth  sections  of  the  act  of  1865  is  to  construe  the  former 
section  as  providing  for  the  creation  of  a  st$>ck  by  the  corpora- 
tion, which  is  to  be  created  by  the  comptroller's  issuing  the 
stock  in  obedience  to  the  requirements  of  the  sixth  section. 

II.  The  Common  Council  owe  no  duty  to  the  relators.  (a)  It 
is 'an  elemental  rule  that  a  party  applying  for  a  mandamus  must 
show  a  clear  legal  right  to  have  the  act  done,  the  performance 
of  which  he  seeks  to  enforce,  and  must  establish  a  correspond- 
ing duty  upon  the  part  of  those  against  whom  the  writ  is  asked, 
to  perform  the  act  as  required  (People  ex  rel.  Green  v.  "Wood, 
35  Barb.)  653,  659,  661).  The  provisions  of  the  act  relied  upon 
to  support  the  order  appealed  from  impose  no  duty  upon  the 


NEW  SEKIES ;  VOL.  I.  321 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

Common  Council.  The  language  of  the  act  is,  "  The  Mayor, 
Aldermen  and  Commonality  of  the  city  of  New  York  are  here- 
by directed  to  create  a  public  fund  or  stock,"  &c.,  &c.  The 
duty  is  imposed  upon  the  corporation,  and  not  upon  the  Com- 
mon Council.  The  Common  Council  is  not  the  corporation,  but 
only  one  of  its  constituent  parts,  and  its  -members  are-merely  the 
agents  and  servants  of  the  corporation,  which  is  composed  of  all 
the  citizens  of  the  city  (Clarke  v.  City  of  Rochester,  5  Abb.  P?\, 
115;  Lowber  v.  Mayor,  3  Abb.  />.,  329,  336  ;  Wyatt  v.  Benson, 
4  Abb.  Pr.,  186).  The  duty  being  imposed  upon  the  corpora- 
tion, that  is  the  body  to  whom,  within  the  rule  above  stated,  the 
writ  of  mandamus  should  have  been  directed.  When  the  court 
determines  that  the  corporation  owes  to  the  relators  some  duty 
with  reference  to  the  creation  of  the  stock  in  question,  and  is- 
sues its  writ  of  mandamus  commanding  the  performance  of  that 
duty,  if  obedience  to  that  mandate  requires  any  action  upon  the 
part  of  the  Common  Council,  the  corporation  will  take  care  that 
such  action  is  taken  in  the  discharge  of  the  duty  which  the  Com- 
mon Council  owe  to  it  (People  ex  rel.  Green  v.  Wood,  supra). 

Cephas  Brainerd,  and  James  8.  Steams,  for.  the  relators,  re- 
spondents.— It  was  contended  by  the  relators,  and  cannot  be  dis- 
puted with  any  show  of  reason,  that  the  conduct  of  the  Common 
Council  showed,  plainly,  an  .intention  to  defeat  the  purposes  of 
the  statute ;  that  these  quasi  legislators  were  seeking,  by  eva- 
sions and  delays,  to  render  the  completion  of  the  work  within 
the  time  fixed  by  the  statute  impossible  ;  that  the  facts  warrant 
the  court  in  finding  a  refusal  (The  Queen,  &c.,  v.  Commissioner 
of  Navigation,  &c.,  8  A.  &  E.,  901 ;  The  Queen,  &c.  v.  Vestry- 
men of  St.  Margaret's,  Id.)  889). 

The  various  counsel  for  the  Common  Council  conceded,  at 
special  term,  that  the  writ  must  issue  unless  the  following  objec- 
tions were  well  taken : 

1.  No  action  on  the  part  of  the  Common  Council  is  required ; 
the  stock  is  created  by  the  statute,  and  the  mandamus  should 
run  to  the  comptroller,  to  compel  him  to  issue  the  stock,  if,  on 
demand,  he  refuses  to  do  it. 

2.  The  Act  says,  the  Mayor,  Aldermen,  &c.,  shall  create 
this  stock,  therefore  the  mandamus  should  run  to  the  whole 
Corporation. 

3.  The  Common  Council,  i.  e..  the  Boards  of  Aldermen  and 

N.  S.— VOL.  I.— 21. 


822  ABBOTTS'  PKACTICE  KEPORTS. 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

Councilmen,   being    legislative,   and  vested   with   discretion, 
cannot  be  compelled  to  vote  in  any  specific  way. 

4.  The  writ  should  run  to  Committees  of  the  two  Boards,  to 
whom  the  matter  is  referred. 

I.  The  Legislature  had  the  power  to  pass  this  statute,   and 
create  this  commission  (People  v.  Draper,  15  N.  IT.,  532  ;  Sill 
v.  The  Village  of  Corning,  Id.,  297  ;  Darlington  v.  The  Mayor, 
28  How.  Pr.,  352  ;  People  v.  Pinckney,  32  N.  Y.,  377  ;  People 
v.  Bachelor,  22  JT.  J".,  128). 

II.  Under  the  law,  as  thus  established,  every  one  of  the 
objections  urged  is  set  at  rest.      The  supreme  power,  in   re- 
spect of  the  erection  of  this  market,  being  in  the  Legislature, 
they  have  the  unquestioned  right  to  select  the  means  by  which 
it  shall  be  built.     They  can  call  in  as  many  collateral  agencies 
as  may  seem  good,  or  employ  but  one ;  they  can  order  the 
payment  of  the  whole  of  these  construction  bills,  in  money 
realized  immediately  by  taxation,  or  they  can  make  the  bur- 
den less  heavy  by  providing  for  the  issue  of  bonds.     They  can 
order  the  Mayor  or  any  'other  official,  to  execute  those  bonds. 
They  can  order  unimproved  property  of  the  city  to  be  sold 
for  the  purpose  (per  DENIO,  Ch.  J.,  in  Darlington  v.  The  Mayor, 
supra],   and   they   can   make   it   imperative  upon  any  local 
officer  or  body  of  officers  to  perform  any  part,  great  or  small, 
in  the  work  proposed. 

It  is  no  answer  to  this  to  say  that,  in  respect  of  other  mat- 
ters, these  local  officers,  or  bodies  of  officers,  are  vested  withN 
discretionary  powers,  for  here  the  Legislature,  in  the  exercise 
of  its  acknowledged  powers,  has  imposed  an  additional  duty 
upon  them,  in  respect  of  which  they  are  not  vested  with  any 
discretion ;  in  respect  of  which  they  are  mere  executive  or 
ministerial  officers,  charged  with  a  duty  which  they  cannot 
avoid,  i.  e.,  the  creation  of  this  "  market  stock." 

III.  We  will  now  answer,  in  the  order  stated,  the  several 
objections : 

1.  No  action  required  on  the  part  of  the  Common  Council, 
&c. 

It  is  plain,  upon  a  mere  reading  of  section  6,  that  the 
Comptroller  cannot  act  until  the  stock  has  been  created  as 
provided  in  section  5.  It  is  the  stock  mentioned  in  that  sec- 
tion, and  none  other,  which  he  is  to  issue ;  stock  created  as 
indicated  in  that  section,  and  not  by  an  Act  of  the  Legislature. 


NEW   SEKIES;  VOL.   I.  323 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

A  fatal  answer  to  an  application  for  a  writ  against  the  Comp- 
troller would  be:  "  There  has  been  no  stock  as  yet  created 
under  section  5."  The  Legislature  did  not  intend  to  create 
the  stock,  for  they  have  commanded  another  body  to  do  it  in 
the  section  5,  i.  e.,  the  legislative  department  of  the  Corpora- 
tion ;  the-  Common  Council.  The  12th  section  of  the  "  Metro- 
politan Fire  District "  law  is  a  precedent  for  a  law  creating 
stock.  That  commands  the  Comptroller  to  issue  bonds,  and 
the  Mayor  to  sign  them  and  affix  the  seal  of  the  Corporation . 
Here  no  such  thing  is  done  or  contemplated.. 

The  compilations  of  Judge  DAVIES  and  Mr.  VALENTINE  are 
full  of  precedents  for  the  sections  5  and  6  of  this  law,  and  it  is 
drawn  according  to  the  forms  sanctioned  by  a  usage  of  many 
years.  And,  under  these  statutes,  it  has  been  the  uniform 
practice  of  the  Common  Council  to  enact  an  ordinance  creat- 
ing the  stock,  and  for  the  Comptroller  to  then  perform  the 
ministerial  duty  of  issuing  it.  Again,  there  are  no  words  in 
the  statute  which  give  any  color  for  the  argument  in  behalf 
of  the  Common  Council ;  it  does  not  purport  to  create  the- 
stock, — it  pledges  the  faith  of  the  city  for  the  redemption  of  the 
stock  to  be  created  under  section  5. 

2.  The  Act  specifies  the  corporation,  and  the  writ  should  so 
run,  &c.  This  is  a  fallacy :  upon  whom  could  service  be 
made — the  Mayor,  the  Comptroller,  and  Corp  oration  Counsel? 
What  would  be  the  answer  to  it?  The  Common  Council  only 
can  create  the  stock,  and  a  writ  should  be  issued  against  them. 
And  how  can  they  be  compelled  to  act  ?  Only  by  a  writ 
which,  by  proper  service,  shall  take  effect  upon  them  individu- 
ally. They  must  each  be  compelled  by  a  mandatory  process 
to  vote  in  favor  of  the  proposed  ordinance.  It  is  the  duty  />f 
this  commission  to  obtain  a  mandamus,  generally,  against  the 
corporation  ;  for  the  name  used  in  the  Act  is  but  the  name  of 
the  corporation.  (The  Mayor,  the  Common  Council,  and  the 
Comptroller,  are  not  the  corporation,  nor  are  they  all,  when 
combined  with  other  officials,  the  corporation.  DENIO,  Ch.  J., 
in  Darlington  v.  The  Mayor.)  And  then  this  corporation, 
after  going  to  the  Court  of  Appeals  on  the  question  of  the 
right  to  the  writ,  is,  on  being  defeated,  to  resort  to  the  same 
course  in  respect  to  the  Common  Council,  to  obtain  the  pas- 
sage of  the  ordinance,  upon  which  they  go  to  the  Court  of 
Appeals ;  then  a  like  proceeding  to  compel  the  Mavor  to  sign 


324  ABBOTTS'  PRACTICE  REPOETS. 

The  Peflple  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

with  a  like  litigation ;  then  the  same  thing  in  regard  to  the 
Comptroller  in  every  respect ;  but  what  if,  at  the  outset,  the 
Corporation  Counsel  should  decline  to  sue  out  any  of  these 
writs  ?  Would  not  this  commission  be  at  last  reduced  to  the 
necessity,  notwithstanding  the  proposition  of  the  respondents', 
to  take  these  extraordinary  proceedings  against  some,  division 
of  the  city  government ;  and  if  that  be  true,  then  why  not 
upon  the  immediate  body,  whose  willful  perverseness  is  now 
attempting  to  defeat  the  purpose  of  the  legislature,  and  the 
wishes  of  the  residents  of  the  city.  Do  not  courts  seek  to 
avoid  circuity  of  action  ?  Then,  upon  the  reason  of  the  thing, 
the  proposition  is  absurd. 

How  stands  it  upon  authority  ?  This  precise  question  was 
made  on  the  return  to  the  alternative  writ  in  Commonwealth 
ex  rel.  Hamilton  v.  Select  and  Common  Councils  of  Pitts- 
burgh (34  Penn.,  496),  carefully  examined,  and  utterly  re- 
pudiated by  the  court. 

So,  the  opinion  of  the  court,  by  BKONSON,  J.  (pp.  460-461), 
in  McCullough  v.  The  Mayor  of  Brooklyn  (23  Wend.,  458),  is 
decisive  that  the  writ  lies  against  the  body  upon  whom  the 
duty  of  "  putting  the  necessary  machinery  in  motion,"  is  im- 
posed. 

So,  People  v.  Common  Council  of  Syracuse  (20  How.  JPr., 
521)  is  strong  to  the  same  point.      There  the  act  of  opening  the  • 
streets  was  an  act  of  the  corporation,  but  the  Common   Council 
was  to  set  the  machinery  in  motion,  and,  accordingly,  the  writ 
was  issued  against  them. 

The  earlier  English  cases  upon  these  topics  are  collected  in 
Archbold's  Practice  of  the  Crown  Office,  239-250,  and  in 
Tapping  on  Mandamus  (Law  Lib.,  N.  S.,  142),  "94. 

But,  finally,  the  statutes  of  this  State  put  this  question  at  rest. 
Oh.  603,  Laws  of  1853,  §  5  (Sess.  Z.,  1853,  pp.'1135, 1136),  pro- 
vides that  no  debt  of  the  character  contemplated  in  the  act  under, 
consideration  shall  be  contracted,  except  by  virtue  of  an  ordi- 
nance passed  by  the  Common  Council  of  the  municipal  corpora- 
tion by  a  vote  of  not  less  than  two-thirds.  There  are  many  pro- 
visions in  that  statute  which  cannot  apply  to  this  case,  but  so 
much  of  the  section  as  is  here  referred  to,  clearly  applies..  Of 
course,  no  one  contends  that  the  power  to  pass  an  ordinance  cre- 
ating this  stock  or  debt  resides  anywhere  in  the  corporate  author- 


NEW  SERIES  ;   VOL.  I.  325 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

ities  but  the  Common  Council  (see  Amended  Charter,  Sess.  Z., 
1857,  vol.  1,  p.  874,  §  5). 

3.  But  we  are  told  that  the  Common  Council  is  vested  with  a 
discretion,  and  cannot  be  compelled  to  vote. 

The  answer  is,  that  in  respect  of  this  law  they  are  vested  with 
no  discretion  whatever,  any  more  than  the  Board  of  Supervisors 
is  vested  with  a  discretion  in  respect  to  the  auditing  of  a  bill  for 
the  salary  of  a  county  officer  fixed  at  a  specific  sum,  by  law. 
Here  the  obligation  is  equally  mandatory.  The  legislature  has 
imposed  a  duty  which  does  not  involve  the  exercise  of  any  dis- 
cretion whatever. 

The  authorities  are  controlling  upon  this  point  (The  People  v. 
Common  Council  of  Brooklyn,  22  Barb.,  404 ;  Green  v.  Com- 
mon Council  of  Syracuse,  29  How.,  491 ;  Commonwealth,  &c.  v. 
Select  and  Common  Councils  of  Pittsburgh,  34  Penn.,  496  ; 
People  ex  rel.  Record  Commissioners  v.  Supervisors  of  New  York, 
11  Abb.  Pr.,  114;  School  District  No.  1  v.  School  District  No. 
2,  3  Wise.,  333  ;»J3tate,  &c.  ex  rel.  Ordway  v.  Smith,  Mayor,  &c., 
11  Wise.,  65). 

4.  The  observations  already  made  are  a  complete  answer   to 
the  suggestion  that  the  writ  should  run  to  committees  of  the 
Common  Council.      Those  instruments  of  the  Common  Council 
cannot  compel  the  bodies  of  which  they  are  the  servants  to  per- 
form a  public  duty. 

It  is  clear,  in  every  aspect,  that  the  order  directing  the  writ  to 
issue,  should  be  affirmed  with  costs. 

CLEKKE,  J. — On  the  argument,  the  only  points  taken  by  the 
counsel  for  the  corporation  were :  first,  that  no  action  upon  the 
part  of  the  Common  Council  was  necessary  to  the  creation  of 
the  stock  in.  question ;  and  second,  that  the  Common  Council 
owe  no  duty  to  the  relators. 

I.  As  to  the  first  point,  the  act  (Laws  of  1866,  p.  211,  §  5)  di- 
rects and  authorizes  the  Mayor,  Aldermen  and  Commonalty  of 
the  city  of  New  York  to  create  a  public  fund  or  stock,  to  be  de- 
nominated "Market  Stock,"  for  the  amount  of  seventy-five 
thousand  dollars,  and  §  6  directs  the  comptroller  of  the  city  to 
prepare  and  issue  said  stock  within  thirty  days  after  being  re- 
quired in  writing  so  to  do  by  the  commissioners.  What  stock  ? 
The  said  stock  !  That  is  the  stock  which,  in  the  preceding 
section,  the  Mayor,  Aldermen  and  Commonalty  of  the  city  of 


326  ABBOTTS'  PKACTICE  REPORTS. 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

New  York  are  directed  to  create.  The  comptroller  evidently 
can  prepare  and  issue  no  other  stock  than  that  mentioned  in  the 
first  section,  and  any  action  relating  to  any  other  would  be 
null  and  void,  and,  of  course,  the  stock  would  be  utterly  worth- 
less. 

II.  As  to  the  point  that  the  Common  Council  has  no  duty  to 
the  relators :  The  language,  no  doubt,  of  the  act,  as  we  have 
seen,  is,  "  The  Mayor,  Aldermen  and  Commonalty  of  the  city 
of  New  York  are  hereby  authorized  and  directed  to  create  a 
public  fund  or  stock,"  &c.  The  words  Common  Council  do  not 
appear  in  the  act.  The  Common  Council,  however,  constitute 
the  only  agency  or  instrumentality  by  which  this  behest  of  the 
supreme  legislature  can  be  obeyed.  The  Mayor,  Aldermen  and 
Commonalty  can  act  in  no  other  possible  way  in  the  premises 
than  by  and  through  the  Common  Council.  They  cannot  com- 
pel the  latter  to  do  so.  The  Mayor,  Aldermen  and  citizens  gen- 
erally, who,  I  suppose,  constitute  the  Commonalty,  may  daily 
raise  their  voices  in  the  loudest  tones,  to  the  honorable  the  Com- 
mon Council,  commanding  them  to  create  this  stock,  and  the 
Common  Council  could  laugh  at  them  as  they  have  laughed  at 
the  Commissioners.  The  only  possible  method  by  which  the 
Common  Council  can  be  compelled  to  do  so  is,  by  application 
to  this  court,  which  alone  can  issue  a  mandamus  capable  of  be- 
ing enforced.  This  point  has  been  frequently  determined  by 
authority.  In  the  language  of  BKONSON,  J.,  McCullough  v.  The 
Mayor,  &c.,  of  Brooklyn  (23  Wend.,  458),  the  writ  lies  against 
the  body  upon  whom  the  duty  of  putting  the  necessary  machin- 
ery in  motion  is  .imposed.  In  The  People  v.  The  Common 
Council  of  Syracuse  (20  How.,  491),  the  act  of  opening  the 
streets  was  the  act  of  the  corporation,  but  the  Common  Council 
had  to  set  the  machinery  in  motion,  and,  accordingly,  the  writ 
was  issued  against  them.  The  obligation  was  mandatory  on 
them.  They  have  no  discretion  in  the  matter  as  in  ordinary 
cases  of  municipal  legislation  ;  they  must  obey  the  supreme  leg- 
islature. See,  also,  The  Commonwealth  v.  Select  and  Common 
Councils  of  Pittsburgh,  34  Penn.,  496 ;  ArcfibolcPa  Practice  of 
the  Crown  Office,  239-250,  and  Tapping  on  Mandamus,  94,  in 
both  of  which  the  early  cases  on  this  subject  are  collected. 

The  order  should  be  ^firmed,  with  costs. 

BARNARD,  P.  J.,  concurred. 


NEW  SERIES;  VOL.  I.  327 

The  People  ex  rel.  The  Market  Commissioners  v.  The  Common  Council. 

ING  RAH  AM,  J. — I  concur  in  the  propriety  of  granting  this  writ, 
were  it  not  directed  to  the  wrong  parties. 

The  statute  imposes  the  duty  of  creating  the  stock,  on  the 
Mayor,  Aldermen  and  Commonalty  of  the  city  of  New  York. 
This  is  the  corporate  title  of  the  municipal  corporation.  They 
act  by  the  Common  Council  and  the  Mayor.  No  action  of  the 
one,  without  the  consent  of  the  other,  can  enact  "the  necessary 
laws  for  creating  the  public  stock,  except  in  case  of  a  veto  from 
the  Mayor.  The  mandamus  directs  the  Common  Council  to 
enact  the  necessary  law  to  create  the  stock.  This  they  cannot 
do  without  the  Mayor ;  and  they  are  required  to  do  what  is  not 
in  their  power. 

I  have  no  objection  to  a  modification  of  the  command  in  the 
writ,  so  as  to  require  them  to  prepare  and  pass,  in  their  separate 
boards,  the  necessary  ordinance  for  that  purpose,  and,  on  com- 
plying with  that  direction,  their  duty  in  the  matter  is  dis- 
charged. 

In  The  People  v.  The  Common  Council  of  Brooklyn  (22 
£arb.,  404)  the  writ  was  so  directed  and  allowed,  but  in  that 
case  the  statute  directed  the  Common  Council  of  Brooklyn  to 
do  the  act.  So,  in  the  case  of  The  People  v.  Common  Council 
of  Syracuse  (20  How.,  491),  the  statute  directed  the  Common 
Council,  after  the  award,  to  pay  the  money. 

In  McCullough  v.  The  Mayor  of  Brooklyn  (23  Wend.,  458), 
BRONSON,  J.,  said,  the  proper  remedy  was  a  mandamus  against 
the  corporation  to  exercise  their  functions  according  to  law. 

Two  things  are  necessary ;  the  action  of  the  Common  Council, 
and  the  approval  of  the  Mayor,  before  the  law  can  be  enacted. 

If  the  writ  had  been  directed  to  the  corporation,  it  would 
have  been  their  duty  to  pass  the  law ;  as  it  19,  the  remedy,  at  best, 
will  be  imperfect. 

Order  affirmed.  t 


328  ABBOTTS'  PEACTICE  REPORTS. 

White  v.  Jones. 


WHITE  against  JONES. 

New  York  Superior  Court  /  General  Term,  November,  1863. 
INJUNCTION. — SIGNS  AND  TRADE-MAKES. — GOOD-WILL. 

A  retiring  partner,  who  releases  and  assigns  all  his  interest  in  the  good-will 
of  the  business  of  the  firm  to  his  co-partner,  does  not  thereby  relinquish 
the  right  to  establish  and  carry  on  a  business  similar  to  that  of  the  late 
firm,  so  long  as  he  does  no  act  to  mislead  customers  into  the  belief  that 
he  is  carrying  on  business  as  the  successor  of  the  old  firm ;  or,  that,  when 
dealing  with  him,  they  are  dealing  with  such  successor. 

Nor  does  one  who  was  formerly  bookkeeper  of  the  late  firm,  and  who,  upon 
its  dissolution,  unites  with  such  retiring  partner  in  establishing  such  new 
business,  thereby  become  liable  to  an  action,  by  the  purchaser  of  the  good 
will,  for  an  injunction  or  damages. 

Where  the  conditions  of  dissolution  were  such  that  the  retiring  partner  had 
the  right  to  open,  and  attend  to,  for  his  own  benefit,  letters  thereafter  ad- 
dressed to  the  late  firm,  upon  certain  subjects  of  business; — Held,  that  the 
mere  fact  that  he  opened,  and  answered,  in  his  own  name,  and  for  his 
own  benefit,  two  fictitious  or  "decoy"  letters,  addressed  to  the  late  firm  at 
the  instance  of  the  plaintiff,  their  successor,  and  purporting  to  be  upon 
business  which  the  former  had  not  the  right  to  attend  to,  did  not  authorize 
the  court  to  interfere  by  action  and  injunction. 

This  was  an  appeal  by  the  plaintiff,  from  a  judgment  in  favor 
of  the  defendants. 

The  action  was  brought  to  restrain  the  defendants,  who  were 
Asahel  Jones  and  Gilbert  C.  Platt,  from  alleged  interferences 
with  the  business  of  the  plaintiff,  and  for  damages  therefor. 

The  cause  was  tried  before  Mr.  Justice  ROBERTSON,  without  a 
jury,  on  the  15th  of  May,  1862. 

For  about  four  years  prior  to,  and  until  the  year  1860,  the 
plaintiff,  the  defendant  Jones,  and  one  McCurdy,  carried  on  in 
New  York,  Philadelphia,  and  elsewhere,  the  business  of  manu- 
facturing and  selling  artificial  teeth,  and  also  instruments  and  ar- 
ticles used  in  dentistry,  as  partners,  under  the  firm  name,  at 
first,  of  Jones,  White  &  Co.,  and  afterwards  of  Jones,  White  & 
McCurdy. 


NEW  SERIES;  VOL.  I.  329 

"White  v.  Jones. 

In  the  year  1860,  McCurdy  left  such  firm,  and  shortly  after-  % 
wards,  on  the  18th  day  of  December,  1860,  the  plaintiff,  and  the 
defendant  Jones,  entered  into  articles  of  copartnership,  and  sub- 
sequently carried  on  a  similar  business  in  the 'several  cities  men- 
tioned therein,  using  in  such  business  the  firm  name  of  Jones  & 
White,  until  such  new  firm  was  dissolved,  as  hereinafter  stated. 

These  articles  provided,  among  other  things,  that  the  firm 
business  should  include  the  manufacture  and  sale  of  gold  foil  and 
plate,  except  in  the  city  of  New  York,  where  that  department 
of  business  was  to  be  carried  on  as  before  by  Jones,  for  his  own 
benefit,  exclusively. 

For  many  years  before  the  formation  of  the  firm  of  Jones  & 
White,  and  during  its  whole  existence,  Jones  resided  in  New 
York,  and  exclusively  superintended  the  business  of  such  firm 
in  New  York,  at  No.  658  Broadway,  and  carried  on  the  branch 
of  business  in  gold  foil  and  plate  at  the  same  place,  exclusively 
for  his  own  individual  benefit ;  while  White  resided  in  Phila- 
delphia, and  had  'charge  of  the  business  in  that  city,  at  which 
faost  of  the  manufacturing  of  the  firm  was  done. 

About  the  26th  of  June,  1861,  the  firm  of  Jones  &  White  was 
dissolved  by  mutual  consent,  by  an  instrument  in  writing,  the 
plaintiff,  White,  purchasing  all  the  interest  of  the  defendant, 
Jones,  including  "  the  good-will  of  the  entire  business."  As  a 
part  of  the  consideration  of  this  transfer,  Jones  agreed  to  take  a 
large  amount  in  the  debts  due  the  firm,  contracted  at,  and  due 
to,  the  New  York  house.  The  defendant,  Platt,  who  had  been 
the  bookkeeper  at  the  New  York  house,  and  well  acquainted 
with  its  business  and  customers,  was  a  subscribing  witness  to 
this  agreement. 

From  the  time  of  the  dissolution  of  the  firm  of  Jones  &  White, 
the  plaintiff  continued  the  business  of  such  firm  at  No.  658 
Broadway,  as  their  successor.  And,  shortly  after  the  dissolu- 
tion, the  defendant  Jones  established,  in  his  own  name,  at  No. 
710  Broadway,  several  blocks,  and  upwards  of  an  eighth  of  a 
mile  distant,  a  new  business,  which  was  substantially  similar  in 
kind  to  the  business  previously  conducted  by  Jones  &  White,  at 
No.  658  Broadway,  and  continued  such  new  business  in  his  own 
name.  The  complaint  alleged  that  the  defendant  Platt  was  in- 
terested in  this  business  with  Jones ;  but  upon  the  trial  it  ap- 
peared that  he  was  not,  being  only  employed  at  a  salary. 

Such  new  business  differed  from  the  business  carried  on  by 


330  ABBOTTS'  PEACTICE  KEPORTS. 

White  v.  Jones. 

the  firm,  previous  to  its  dissolution,  in  this,  that  the  defendant 
Jones  sold  teeth  manufactured  by  other  persons,  but  did  not 
himself  manufacture  them,  whereas  the  sales  of  teeth  by  such 
firm  were  principally  of  those  manufactured  by  it.  . 

The  plaintiff,  supposing  that  letters  addressed  to  Jones, 
White  &  McCurdy,  and  containing  orders  and  money  for 
himself  as  their  successor,  were  received  and  opened  by  the  de- 
fendants, employed  a  detective  officer  connected  with  the  United 
States  postal  service,  who  sent  through  the  post  office  two  letters 
addressed  to  the  firm  of  Jones  &  White,  which  purported  to  be 
business  letters,  and  one  contained  a  sum  of  money  to  pay  for 
goods  for  wThich  it  contained  an  order.  These  letters  came  to 
the  hands  of  the  defendant  Jones,  and  he  answered  them  by 
mail,  over  his  individual  signature.  The  envelopes  in  which  his 
answers  were  sent,  contained  his  individual  business  card,  or  ad- 
dress. To  one  of  these  letters  the  officer  replied,  in  his  fictitious 
name,  saying  :  •*•*•*"  Your  terms  are  all  satisfactory,  but 
"  you  do  not  state  whose  make  of  teeth  they  are :  are  they  the, 
"  same  as  formerly,  or  a  new  make  ?  I  sent  my  letter  to  Jones  & 
"  White,  but  I  suppose  they  have  dissolved  since  I  had  any  busi- 
"  ness  with  them,  which  is  some  time  since,  and  I  suppose  you 
. "  carry  on  the  business."  *  *  * 

In  answer  to  this,  the  defendant  Jones  wrote  :  *  *  *  "  I 
"  will  send  you,  if  ordered,  my  own  teeth,  and,  if  not  satisfac- 
"  tory,  will  take  them  back.  *  *  *  Anything  in  the  dental 
"  line  I  can  give — and  I  believe  that  twenty  years'  experience 
"  in  the  dental  business  will  be  a  sufficient  guarantee  of  my 
"  character  in  this  line.  I  shall  be  happy  to  receive  your  favors." 

In  answer  to  the  other  of  the  decoy  letters,  the  defendant 
Jones  sent  a  package  of  the  goods  which  it  purported  to  require, 
by  mail  to  the  address  specified  therein,  and  enclosed  therewith 
several  envelopes  with  his  individual  address  printed  thereon, 
and  also  a  bill  of  the  goods  as  bought  of  him. 

That  package  and  its  enclosure  came  afterwards,  unopened, 
to  the  hands  of  the  person  by  whom  the  decoy  letter  had  been 
prepared  and  mailed,  who  was  one  of  the  employees  of  the  post 
office,  and  the  goods  contained  therein  were,  upon  the  applica- 
tion of  the  defendant  Jones,  restored  to  him,  and  he,  thereupon, 
returned  to  such  employee  the  sum  of  money  which  he  had  pre- 
viously received  for  the  same. 

The  judge  found,  as  a  fact,  that  "  except  as  hereinbefore  stated, 


NEW  SERIES ;  YOL.  I.  331 

White  v.  Jones. 

neither  of  the  defendants,  since  execution  of  said  instrument  of 
dissolution,  have  received,  opened,  or  sent  letters  or  envelopes 
containing  orders  for  goods  from  customers  of  the  late  firm  of 
Jones  &  White,  or  from  others  who  had  not  previously  dealt 
with  it,  which  were  directed  either  to  Jones  &  White,  or  to 
Jones,  White  &  Co.,  or  to  Jones,  White  &  McCurdy,  or  any  let- 
ters intended  for  Jones  &  White,  or  for  the  plaintiff,  or  their 
successor,  or  filled  such  orders,  or  sent  goods  as  in  such  orders 
requested,  or  received  moneys  in  payment  therefor,  or  treated 
such  orders  as  intended  for  them,  or  for  said  Jones. 

And  he  found  as  conclusions  of  law : 

First.  That  the  "good-will"  of  the  business  of  the  late  firm 
of  Jones  &  White,  and  of  the  previous  firms  of  which  it  was  the 
successor,  became,  and  was,  by  virtue  of  the  articles  of  dissolu- 
tion, the  sole  and  exclusive  property  of  the  plaintiff,  as  successor 
of  said  firm. 

Second.  The  defendant  Jones  has  not,  since  the  execution  of 
said  agreement,  violated  the  covenants  and  provisions  therein 
contained,  on  his  part  to  be  done  and  performed,  nor  interfered 
with,  or  infringed  upon  the  said  good-will  of  the  former  firm, 
now  belonging  to  the  plaintiff  as  aforesaid. 

Third.  That  said  defendant  Jones  had  the  right  to  open  any 
letter  addressed  to  the  firm  of  Jones  &  White,  respecting  the 
debts  due  to  the  said  partnership  of  Jones  &  White  in  New 
York,  at  the  time  of  its  dissolution,  and  the  business  of  manufac- 
turing and  selling  gold  foil  and  plate,  since  the  dissolution  of 
the  said  partnership,  and  had  the  right  to  receive  and  open  and 
answer  any  letters  addressed  to  the  said  firm,  which  he  did  not 
have  any  reason  to  believe  did  not  relate  to  such  matters,  if  he 
did  not  open  the  same  for  the  purpose  of  fulfilling  orders  there- 
in contained,  not  relating  to  such  matters. 

fourth.  The  defendant  Platt  is  not  in  any  manner  a  party 
to  the  articles  of  dissolution  in  the  complaint  set  forth,  and  has 
not,  since  the  plaintiff  became  entitled  to  the  good-will  of  the 
business  of  the  late  firm  of  Jones  &  White,  infringed  upon,  or 
in  any  manner  interfered  with  such  good-will. 

And  I  do  accordingly  adjudge,  that  the  plaintiff  is  not  entitled 
to  the  injunction  in  the  complaint  prayed  for,  restraining  the 
defendants,  or  either  of  them,  as  therein  specified,  or  in  any 
I  manner  ;  and  that  the  plaintiff  has  sustained  no  damages  which 
he  is  entitled  to  recover  against  the  defendants,  or  either  of 


332  ABBOTTS'  PRACTICE  REPOETS. 

White  v.  Jones. 

them,  and  that  the  complaint  should  be  dismissed  with  costs  to 
be  adjusted,  and  the  injunction  heretofore  granted  herein 
against  the  defendants  dissolved. 

Judgment  against  White  for  costs  was  entered,  from  which 
the  present  appeal  was  taken. 

Ellridge  T.  Gerry,  and  William  Curtis  Noyes,  for  plaintiff, 
appellant. — I.  By  the  terms  of  the  articles  of  dissolution  an  ab- 
solute vested  right  to  the  entire  property  of  the  concern,  both 
real  and  personal,  was  conveyed  to  the  appellant  for  a  valuable 
consideration  ;  and  to  prevent  any  misunderstanding  as  to  the 
extent  of  property  thus  conveyed,  "  the  good-will  of  the  entire 
business  "  was  specifically  mentioned  in  the  contract. 

1.  That  "  good-will "  was  partnership  property,  a  legal  subject 
of  conveyance,  and  vend  able  to  any  one  by  all  the  partners  ;  or 
by  one  to  the  other,  as  in  this  case  (Marten  v.  Van  Schaick,  4: 
Paige,  479  ;  Dougherty  v.  Van  Nostrand,  Hoffm.  Ch.,  68 ;  Smith 
v.  Everett,  27  Beav.,  446  ;  S.  C.,  29  Law  Jour.  Ch.,  236 ;  Wed- 
derburn  v.  Wedderburn,  2  Jurist  [N.  S.},  674 ;  S.  C.,  22  Beau., 
84  ;  S.  C.,  25  Law.  Jour.  Ch.,  710 ;  Wade  v.  Jenkins,  7  Jurist 
[N.  /SI],  39 ;  S.  C.,  2  Giff.  Ch.,  509  ;  S.  C.,  30  Law  Jour.  Ch., 
633  ;  S.  C.,  3  Law  Times  \N.  £.],  464). 

2.  It  was  in  the  present  case  a  definite  interest,  consisting  in 
an  advantage  arising  from  the  fact  of  sole  ownership  to  the  ex- 
clusion of  other  persons.      It  was  embodied  in  the  firm  name 
which  was  essential  to  its  use,  and  could  neither  perish  nor  be 
separated  from  it  (Story  on  Partn.,  §  99  ;  16  Am.  Jurist,  87,  arti- 
cle by  Prof.  Greenleaf ;  Kennedy  v.  Lee,  3  Meriv.,  452  ;  Coll- 
yer  on  Partn.,  §  161 ;   Williams  v.  Wilson,  4  Sahdf.  Ch.,  379  ; 
Smith  v.  Gibbs,  25  Law.  Rep.,  421 ;  Fenn  v.  Bolles,  7  Abb.  Pr.y 
202  ;  2  Lindley  on  Partn.,  709-10). 

H.  There  was  an  implied  covenant  by  Jones  in  the  transfer 
to  White  of  all  this  property,  that  no  act  should  be  done  by  him 
to  deprive  White  of  the  benefits  accruing  tg  him  from  such 
transfer. 

1.  By  the  articles  of  dissolution,  the  right  was  secured  to 
Jones  to  carry  on  his  manufacture  and  sale  of  gold  foil,  besides 
a  reservation  to  him  of  certain  debts  due  the  old  firm.  They 
nowhere  authorized  any  interference  by,  or  right  of  Jones  to  any 
other  portion  of  the  business ;  and  these  reservations  to  him,  on 
well  settled  legal  priniciples,  were  an  exclusion  of  all  the  rest 


NEW  SERIES ;  VOL.  I.  333 

White  v.  Jones. 

(Bennett  v.  Van  Syckel,  4  Duer,  462  ;  1  Plait  on  Covenants, 
55,  57 ;  Selden  v.  Senate,  13  East,  63 ;  Aulton  v.  Atkins,  18 
Com.  Bench,  249  ;  S.  0.,  2  Jurist  [ff.  &],  812  ;  S.  C.,  25  Law 
Jour.  Ch.,  229 ;  Ward  v.  Audland,  16  Mees.  &  W.,  862,  S7Q,and 
authorities  cited  in  American  edition  /  Cooper  v.  Watlington, 
Chitty,  321 ;  S.  0.,  sub  nom.  Cooper  v.  "Watson,  3  Doug.,  413,  in 
.point}. 

2.  So  that,  although  there  is  no  express  covenant  in  these  ar- 
ticles by  Jones  not  to  set  up  any  rival  business,  still  one  is  im- 
plied, the  good- will  having  been  sold  by  him  to  White ;  and  he 
had  no  right  to  give  any  notice,  or  do  anything  indicating  that 
his  was  the  old  business,  or  which  might  interfere  with  White's 
enjoyment  of  it  (Crutwell  v.  Lye,  17  Vesey,  Jr.,  344;  Howe  v. 
Searing,  6  Bosw.,  370,  per  MONCKIEF,  J.). 

III.  The  facts  in  the  case,  proven  by  the  evidence  and  found 
by  the  court,  show  conclusively  a  fraudulent  infringement  by  the 
respondents  of  rights  acquired  by  White  in  the  purchase  of 
the  property,  and  for  the  protection  of  which  this  action  was 
brought. 

1.  Long  before  the  sale,  but  while  it  was  in  contemplation, 
Jones  and  Platt  secretly  combined  to  secure  for  themselves  a 
lucrative  business  out  of  the  transaction,  (a)  They  first  took 
lists  of  the  customers  of  the  firm,  and  then  sought  to  induce  the 
old  clerks  to  leave  White  and  go  with  them.  (J)  Then  they 
prepared  advertisements  of  their  intended  new  business,  pro- 
cured a  store  close  by  that  of  the  old  firm,  and  before  White  got 
possession,  Platt  made  arrangements  in  Philadelphia  to  furnish 
Jones  and  himself  with  materials  like  those  used  by  the  old 
firm,  (c)  All  this  was  done  secretly,  White  being  ignorant  of 
the  matter,  and  supposing  'that  the  transaction  between  him  and 
Jones  was  fair  and  honest.  Indeed,  he  did  not  even  suspect  the 
purloining  of  his  orders  by  Jones  until  the  detectives  suggested  it. 

2.*  This  fraudulent  scheme  of  the  respondents,  which  com- 
menced before,  was  carried  out  by  them  subsequent  to  the  sale. 
(a)  The  business  of  White  greatly  decreased,  which  can  be  at- 
tributed to  no  other  cause.  (b)  Jones  opened  and  read  letters 
addressed  to  the  old  firm,  which  he  had  no  right  to  do,  under 
the  pretence  that  his  ownership  of  the  debts  of  the  old  firm,  Se- 
cured to  him  on  its  dissolution,  warranted  such  a  course.  In- 
deed, he  admitted  this  to  the  detectives. 

3.  These  facts  bring  the  case  completely  within  the  rule  of 


334  ABBOTTS'  PRACTICE  REPORTS. 

White  v.  Jones. 

Harrison  v.  Gardner,  and  show  a  deliberate  fraudulent  purpose 
when  the  contract  of  sale  was  made,  to  violate  the  understand- 
ing by  which  the  property  was  transferred  to  White  (Harrison 
v.  Gardner,  2  Madd.  Ch.,  197,  220  [Am.  Ed.,  p.  444],  per  SIB 
W.  PLTJMMEB  ;  Gale  v.  Gale,  19  Barb.,  249). 

IV.  Equity  will  intervene  to  restrain  a  vendor  from  fraudu- 
lently depriving  his  vendee  of  the  benefits  which  would  natu- 
rally result  from  the  sale ;  and  will  compel  him  to  refund  profits ' 
which  he  has  himself  usurped,  besides  holding  him  responsible 
for  damages-  resulting  from  the  fraud  (2  Hovenden  on  Frauds, 
68,  240-1 ;  Nickley  v.  Thomas,  22  Barb.,  652;  Green  v.  Folg- 
ham,  1  Sim.  <&  S.,  406). 

Y.  The  respondent,  Platt,  was  a  particeps  criminis,  combin- 
ing with  Jones  to  carry  out  his  fraudulent  intentions,  and  reap- 
1  ing  his  advantage  in  a  percentage  on  profits  fraudulently  ac- 
quired. He  is,  therefore,  jointly  liable  with  Jones  in  damages, 
having  joined  in  the  commission  of  a  tort,  with  full  knowledge 
of  the  facts  (2  Hilly  ard  on  Torts,  310,  311,  and  cases  cited  in 
notes  /  Longman  v.  Pole,  Moody  &  M.,  223). 

VI.  The  court  below  erred  in  not  finding  the  facts  set  forth 
in  the  appellant's  exceptions,  which  were  fully  sustained  by  the 
evidence,  in  excluding  certain  portions  of  evidence  which  were 
relevant  and  admissable  to  sustain  the  complaint ;  and,  finally, 
in  dismissing  the  complaint  upon  the  facts  proven,  and  dissolv- 
ing the  injunction  previously  granted. 

Joseph  H.  Choate,  for  defendants,  respondents. — I.  The  case 
made  by  the  complaint  is  the  only  case  before  the#  court,  and 
that  is  simply  for  a  violation  of  the  articles  of  dissolution.  The 
transfer  by  one  partner  of  the  good- will  of  the  firm  business  does 
not,  without  an  express  agreement  to  that  effect,  bar  him  from 
establishing  and  carrying  on  a  similar  business,  in  his  own  name, 
and  from  employing,  as  a  stranger  might  do,  in  fair  competition, 
all  the  legitimate  modes  of  advertising  and  advancing  the  new 
business  (Davis  v.  Hodgson,  25  Bean.,  177 ;  Cooke  v.  Collin- 
gridge,  JOG.,  623 ;  Crutwelk  v.  Lye,  17  Yes.,  346, 385  ;  Churtonv. 
Douglass,  1  H.  V.  Johnson,  176  ;  Snowdon  v.  Noah,  HopJc.  Ch., 
3-17  ;  Bell  v.  Locke,  8  Paige,  75 ;  Dayton  v.  Wilkes,  17  flow. 
Pr.,  510  ;  Howard  v.  Henriques,  5  Sandf.  S.  Ct.,  725 ;  Howe  v. 
Searing,  6  Bosw.,  365 ;  and  vid.  Hitchcock  v.  Coker.  6  Ad.  & 
EL,  438,  446 ;  Elves  v.  Crofts,  10  Com.  B.,  241 ;  Harrison  v. 


NEW  SERIES;  VOL.  I.  335 

White  v.  Jones. 

Gardner,  2  Madd.,  197  [Am.  Ed.,  p.  444]  ;  Shackle  v.  Baker, 
14  Ves.,  468).  In  Williams  v.  Wilson  (4  Sandf.  Ch.,  379),  the 
injunction  was  probably  made  mutual  by  consent. 

II.  The  defendant,  Jones,  never  covenanted  or  agreed  to  re- 
frain from  carrying  on  the  same  business  elsewhere — and  the 
plaintiff  has  wholly  failed  to  show  any  violation  on  hi&xpart  of 
the  articles  of  dissolution. 

III.  As  to  the  letters.     An  examination  of  the  partnership 
articles  and  the  agreement  of  dissolution  shows  that  about  one- 
half  of  all  the  business  done  at  its  New  York  house  by  Jones  & 
White  consisted  of  Jones'  private  business  in  the  manufacture 
and  sale  of  gold  foil  and  plate,  and  that  this,  at  the  dissolution, 
reverted  to  Jones.     Also,  that  at  the  dissolution,  all  the  debts 
due  to  the  firm  at  its  New  York  house  became  the  sole  property 
of  Jones,  and  that  the  settlement  of  them  was  left  to  him.     He 
had,  therefore,  undoubtedly  the  exclusive  legal  right,  after  the 
dissolution,  as  found  by  the  court,  to  receive  and  open  and  keep 
all  letters  addressed  to  the  firm  relating  to  either  of  those  sub- 
jects ;  and  a  right,  in  common  with  the  plaintiff,  to  open  and 
read  all  letters  addressed  to  the  firm,  coming  into  his  hands,  for 
the  purpose  of  ascertaining  whether  they  were  his  or  not.    By  a 
roguish  device,  for  the  purpose  of  entrapping  the  defendant  into  a 
seeming  violation  of  his  rights,  the  plaintiff,  some  four  months 
after  the  dissolution,  entered  into  a  conspiracy  with  some  of  the 
clerks  of  the  post-office,  to  get  into  the  hands  of  the  defendant 
counterfeit  letters  and  orders  to  the  firm,  in  the  hope  that,  by 
inadvertence  or  otherwise,  he  might  fill  the  orders,,  and  so  fur- 
nish the  plaintiff  some  ground  which  he  had  not  yet  found  on 
which  to  seek  the  interposition  of  a  court  of  equity.    The  results 
of  this  dishonest  manoeuvre  constitute  the  sole  basis  of  the  plain- 
tiff's alleged  grievances. 

The  acts  of  the  defendant,  in  all  these  instances,  even  had  they 
not  been  the  result  of  inadvertence,  which  upon  the  evidence 
they  clearly  were,  and  had  the  transactions  been  genuine,  are 
clearly  shown  in  the  opinion  of  ROBERTSON,  J.,  to  form  no 
ground-work  for  the  plaintiff's  action. 

But,  further  than  this,  in  view  of-  the  plaintiff's  connexion 
with  all  those  transactions,  it  is  obvious  that  all  those  letters  were 
written  and  sent  by  the  plaintiff  to  the  defendant,  with  tho 
intent  that  they  should  be  opened  and  read,  and  the  orders  filled 
by  him,  and  as  the  only  means  of  effecting  this,  so  that  Jones 


336 ABBOTTS'  PRACTICE  REPORTS. 

•  White  v.  Jones. 

might  inadvertently  fall  into  the  trap,  to  insert,  them  in  a  box 
•where  none  but  his  own  letters  were  ever  placed,  and  to  get 
them  into  the  hands  of  his  messenger  among  a  parcel  of  his  let- 
ters, so  that  they  might  escape  notice. 

Moreover,  it  is  equally  obvious  that  by  these  transactions  the 
plaintiff  sustained  no  damage.  Nobody  was  deceived.  The 
Chilicothe  customer  and  the  Concord  customer  were  none  but 
the  plaintiff;  the  money  received  by  Jones  in  the  one  instance 
was  refunded  as  soon  as  discovered ;  and  in  the  case  of  the  Cuba 
letter,  the  order  and  the  profits  of  it  belong  by  the  agreement 
to  Jones. 

IV.  But,  in  addition  to  the  utter  failure  of  merits,  there  are 
general  rules  of  equity  which  imperatively  required  that  the 
plaintiff's  action  should  be  dismissed,  as  it  was. 

1.  Because  it  has  been  attempted  to  be  brought  within  the 
jurisdiction  of  equity  and  of  the  court  by  a  dishonest  trick,  but 
for  which  the  plaintiff  could  not  have  stated  in  his  bill  a  prima 
facie  case.    No  court  of  equity  will  sanction  ,an   attempt  by 
fraud  or  misrepresentation  to  bring  a  party  or  a  cause  within  its 
jurisdiction.     No  plaintiff  can  successfully  invoke  the  aid  of 
equity  unless  his  own  hands  are  clean,  and  his  own  conscience 
pure  in  the  business  that  brings  him  there. 

2.  Because  he  who  seeks  equity  must  show  that  he  is  ready 
to  do  equity ;  but  the  plaintiff's  whole  cause  in  the  business  has 
been  inequitable   and   fraudulent ;    instead   of  seconding  the 
efforts  of  the  defendant  to  have  his  letters  kept  separate,  he  pur- 
posely contrives  a  plan  to  confuse  the  firm's  letters  with  those  oi 
the  defendant,  in  the  hope  that  the  latter  in  an  unwary  moment 
might  open  and  answer  some  that  did  not  belong  to  him. 

3.  Because  equity  will  not  relieve  a  man  against  grievances 
which  he  has  brought  upon  himself;  nor -help  him  to  relief  to 
which  he  can  perfectly  well  help  himself.     Had  the  plaintiff 
taken  half  as  much  pains  to  keep  his  letters  out  of  the  defendant's 
hands  as  he  did  to  get  them  into  them,  he  would  have  had  no 
pretence  for  bringing  his  action. 

4.  Because  the  plaintiff's  evidence  shows  that  the  grievance 
complained  of  no  longer  existed ;  before  the  trial  the  plaintiff 
had  wholly  ceased  receiving  letters  directed  to  the  firm. 

V.  As  to  the  defendant  Platt  no  evidence  was  offered.    He 
had  a  plain  right  to  choose  his  own  master.    He  has  no  interest 
in  the  defendant  Jones'  business,  and  had  no  hand  in  any  of  the  • 
acts  complained  of. 


KEW  SEKIES  ;  YOL.  I.  337 

White  v.  Jones. 

BY  THE  COUBT. — BOSWOETH,  CH.  J. — The  sale  by  Jones  to 
White,  on  the  dissolution  of  their  copartnership,  of  his  interest 
in  it,  and  "  the  good- will  of  the  entire  business,"  did  not  deprive 
Jones  of  the  legal  or  equitable  right  to.  engage  in,  and  prosecute 
a  similar  business,  in  the  vicinity  of  the  place  of  business  of  the 
dissolved  firm.  This  seems  to  be  so  well  settled,  that  nothing 
more  is  necessary  than  to  refer  to  some  of  the  prominent  cases, 
affirming  this  doctrine  (Crutwell  v.  Lye,  17  Ves.  <//•.,  344 ;  Davis 
v.  Hodgson,  25  Beav.,  177;  Churton  v.  Douglas,  1  H.  V. 
Johnson,  176  ;  Howe  v.  Searing,  6  JBosw.,  354 ;  Day  ton -y.Wilkes, 
17  How.  Pr.,  510). 

The  complaint  does  not  allege  that  the  defendant,  in  prosecut- 
ing.his  business  at  710  Broadway,  represents  it  to  be  the  same 
business  which  the  dissolved  firm  carried  on  at  658  Broadway, 
or  that  he  is  conducting  business  at  710  Broadway,  as  successor 
to  the  late  firm  of  "  Jones  &  White."  On  the  contrary,  it  avers 
that  "  Jones  has  established  a  similar  business,  in  all  respects,  to 
that  of  the  old  firm,  in  his  own  name,  *  *  and  still  con- 
tinues to  carry  on  such  business  in  his  own  name,  *  *  such 
business  being,  in  all  respects,  similar  to  that  conducted  by  the 
said  firm  of  Jones  &  White." 

That  Jones  has  opened  letters,  etc.,  directed  to  "  Jones  & 
White,"  "  Jones,  White  &  Co.,"  and  to  "  Jones,  White  &  Mc- 
Curdy,"  intended  for  the  plaintiff;  that  such  letters  were  from 
customers  of  the  late  firm  of  Jones  &  White,  and  contained  or- 
ders for  goods ;  and  that  Jones  has  filled  said  orders,  and  re- 
ceived payment  for  the  goods  ordered. 

Judgment  is  prayed  that  Jones  be  enjoined  from  receiving  or 
opening  any  letters  or  orders  directed  as  aforesaid,  or  from  filling 
the  orders,  or  from,  in  any  way,  interfering  with  the  business 
of  the  former  firm,  or  the  good-will  thereof;  and  for  damages. 

The  defendant  has  a  right  to  establish  and  carry  on,  in  his  own 
name,  a  business  similar  to  that  of  the  late  firm,  so  long  as  he  does 
no  act  to  lead  customers  into  the  belief  that  he  is  carrying  on  bus- 
iness as  the  successor  of  the  old  firm,  or  that,  when  dealing  with 
him,  they  are  dealing  with  White,  or  with  the  person  succeeding 
to  the  business  of  the  late  firm  of  Jones  &  White. 

To  such  loss  of  anticipated  business  or  profits  as  the  plaintiff 
may  be  subjected  by  the  prosecution  by  Jones  of  a  similar  bus- 
iness, in  his  own  name,  conducted  as  the  law  will  permit  him 
to  conduct  it,  the  plaintiff  must  submit.  If  the  good-will  of  the 
K.  S.— YOL.  I.— 22. 


338  ABBOTTS'  PRACTICE  REPORTS. 

White  v.  Jones. 

business  of  the  dissolved  firm  should  prove  less  valuable,  by  such 
means,  than  the  plaintiff  estimated,  it  is  his  misfortune,  and  the 
law  will  not  undertake  to  idemnify  him,  by  enjoining  Jones  from 
prosecuting  a  similar  business. 

The  evidence  offered  to  be  given  by  the  witness,  "Walker, 
was  properly  rejected.  The  conversation  offered  to  be  proved, 
is  not  stated  in  the  offer  to  have  been  made  in  the  hearing  of 
the  plaintiff. 

The  complaint  does  not  allege  that  Jones,  to  induce  White  to 
enter  into  the  contract  of  dissolution,  represented  that  he  did 
not  intend  to  engage  in  a  similar  business  in  competition  with,  or 
in  opposition  to  the  plaintiff.  It  does  not  intimate  the  existence 
of  any  contract  not  evidenced  by,  or  embodied-  in,  the  written 
contract  of  the  26th  of  June,  1861.  It  does  not  attempt  to  raise 
any  question  of  fraud  by  White,  in  obtaining  the  execution  of 
that  written  contract.  The  case  made,  and  the  right  to  the  re- 
lief sought,  are  founded  on  the  rights  growing  out  of  the  agree- 
ment which  that  expression  imports,  and  its  supposed  violation. 

The  complaint  does  not  allege  that  Jones  has  issued-  circulars, 
or  published  advertisements,  the  continuance  of  which  should 
be  enjoined. 

The  only  relief  prayed  for,  not  disposed  of  by  the  views  al- 
ready stated,  is  an  injunction  restraining  the  defendants  from 
receiving  and  opening  letters  addressed  as  stated  in  the  prayer 
for  relief,  and  from  filling  the  orders. 

The  evidence  relating  to  this  branch  of  the  case  warrants  the 
findings  of  fact  as  found  at  special  term. 

The  only  misconduct  charged  in  the  complaint  against  Platt, 
besides  the  opening  of  orders  intended  for  the  plaintiff,  and 
filling  such  orders,  is  his  forming  a  partnership  with  Jones,  in 
the  business  conducted  at  No.  710  Broadway,  and  continuing 
such  partner,  and  interested  in  said  business,  having  been  the 
bookkeeper  of  Jones  &  White,  well  acquainted  with  its  business, 
and  those  accustomed  to  deal  with  it,  and  knowing  of  the  disso- 
lution of  that  firm  ;  the  articles  of  dissolution  and  their  contents, 
and  having  signed  the  same  as  a  subscribing  witness. 

Except  the  allegation  of  opening  letters  and  orders,  and  filling 
the  orders,  no  misconduct  is  imputed  to  him  in  the  complaint. 

The  facts  found  in  respect  to  the  matter  last-named,  do  not 
authorize  the  court  to  interfere  by  action  and  injunction. 
The  judgment  should  be  affirmed. 


NEW  SERIES ;  VOL.  I.  339 

Martin  v.  Iloughton. 


MARTIN  against  HOUGHTON. 

Supreme  Court,   Third  District;  General  Term,  /September, 

1865. 

DEFENSE  IN  TRESPASS. — LICENSE. — EVIDENCE. 

A  license  to  enter  premises,  upon  which  one  has  for  years  been  in  the  habit 

of  visiting,  may  be  presumed. 
Evidence  as  to  the  length  of  time  a  path  had  existed  which  was  used  for  BO 

entering  is  pertinent. 
Of  the  evidence  which  will  sustain  a  finding  for  the  defendant  in  an  action 

for  trespass,  in  crossing  plaintiff's  premises  after  being  forbidden. 

Appeal  from  a  judgment  of  the  county  court  of  Albany 
county,  reversing  a  judgment  of  a  justice's  court. 

The  plaintiff,  Jacob  H.'Martin,  complained  against  the  de- 
fendant, Jane  Houghton.  in  trespass,  for  crossing  his  premises, 
after  the  defendant  was  forbidden. 

The  defendant  interposed  by  her  answer :  first,  a  general  de- 
nial ;  second,  a  license  from  the  plaintiff  to  cross ;  third,  that 
the  public  had  a  right  to  cross  the  path. 

The  action  was  tried'  before  a  jury,  who  rendered  a  verdict  in 
favor  of  the  defendant. 

The  additional  facts  appear  in  the  following  opinion. 

The  county  court  having  reversed  the  judgment,  the  defend- 
ant appealed  to  the  Supreme  Conrt. 

J.  E.  Clute,  for  the  appellant. 
Ira  Shafer,  for  the  respondent. 

BY  THE  COURT.* — ING  ALLS,  J.— It  appears  from  the  evidence 
of  the  plaintiff,  that  the  defendant  had  been  in  the  habit  of 
coming  upon  the  premises  of  the  plaintiff  for  a  series  of  years, 
and  within  the  two  years  next  prior  to  the  trial,  passed  through 

*  Present,  HOGEBOOM,  MUJJSB  and  INGALLS,  JJ. 


340  ABBOTTS'  PRACTICE  REPORTS.. 

Martin  v.  Houghton. 

the  door  yard,  some  times  upon  one  side  of  the  house,  and  at 
other. times  upon  the  other  side.  There  was  a  path,  some  part 
of  the  time,  upon  which  the  defendant  traveled.  The  plaintiff 
testified  that  the  defendant  came  to  his -house  a  number  of 
times,  but  did  not  know  and  could  not  testify  whether  he  had 
sent  for  her.  That  he  forbid  her  crossing  his  place  at  different 
times,  and  she  said  she  would  go  and  did  go.  That  he  told 
defendant  she  should  not  cross  the  path,  but  might  cross  along 
the  stone  wall.  That  she  afterwards  passed  around  the  house, 
and  he  then  told  her  she-  should  not  cross  his  place  at  all.  The 
defendant  testified  in  substance  that  she  had  lived  at  her 
brother's  since  she  was  born,  and  that  there  had  been  a  path 
from  her  brother's  to  the  plaintiff's  which  she  had  traveled  for 
thirty  years.  That  the  plaintiff  forbid  her  going  on  the  path, 
but  gave  her  permission  to  go  along  the  stone  wall,  and  that  she 
was  going  along  the  wall  when  the  boy  told  her  to  go  off  the 
rye.  That  she  had  traveled  that  path  in  going  to  plaintiff's 
when  his  mother  was  sick.  That  the  families  had  been  on 
intimate  terms.  That  she  had  seen  the  path  ploughed  up. and 
a  furrow  ploughed  for  a  path. 

I  think,  from  all  the  evidence,  the  jury  were  justified  in  find- 
ing that  no  trespass  was  committed  by  the  defendant,  upon  the 
premises  of  the  plaintiff,  after  she  was  forbidden  to  enter  there-  • 
on.  The  plaintiff  testified  that  the  defendant  had  been  in  the 
habit  of  visiting  his  house,  and  would  not  swear  that  such  visits 
were  not  by  invitation.  He  testified  that  he  told  defendant  she 
should  not  cross  the  path,  but  might  cross  along  the  stone  wall. 
There  is  nothing  in  the  evidence  to  show  where  the  stone  w,aU 
was  located,  or  that  in  going  around  the  house  she  did  not  go 
along  the  wall. 

The  evidence  does  not  show  at  what  period,  after  she  was 
forbidden  to  cross  the  premises,  she  crossed  the  same,  nor  but 
that  such  crossing  was  along  the  stone  wall.  It  is  quite  appar- 
ent that  the  families  had  been  on  friendly  terms,  and  the  de- 
fendant had  been  a  welcome  visitor  at  the  plaintiff's  house,  and 
for  a  period  of  thirty  years  had  been  accustomed  to  travel  upon 
the  path  spoken  of. 

It  can  hardly  be  inferred  from  the  evidence  that  the  plaintiff 
at  the  time  he  forbid  the  defendant  crossing  upon  the  path, 
and  at  the  same  time  gave  her  permission  to  travel  along  the 
wall,  supposed  the  defendant  guilty  of  trespass  for  which  he 


NEW  SERIES  ;  YOL.   I,  341 

Martin  v.  Houghton. 

designed  to  hold  her  accountable.  The  jury  were  also  justified, 
from  the  evidence,  in  finding  that  the  defendant  did  not  enter 
upon  the  premises  in  violation  of  the  permission  of  the  plaintiff,. 
after  she  was  forbidden.  If  inferences  are  to  be  indulged,  they 
must  be  in  support  of,  and  not  against  proceedings  in  the 
justice's  court ;  and  where  a  party  seeks  to  reverse  a  judgment 
he  must  show  affirmatively  that  error  has  been  committed,  and 
that  he  has  been  prejudiced  thereby. 

The  defendant  interposed  one  defense,  that  the  entry  upon 
the  premises  was  by  the  license  of  the  plaintiff.  To  constitute 
a  license  which  amounts  to  a  defense  to  an  action  of  trespass, 
there  must  be  a  permission  to  enter  upon  the  premises,  which 
may  be  express,  or  implied  from  circumstances,  and  it  has  been 
held  that  familiar  intimacy  between  families  may  be  evidence 
from  which  a  general  license  for  such  purpose  may  be  presumed 
(Adams  v.  Freeman,  12  Johns.,  408;  Syron  v.  Blakeman,  22 
Barb.,  336 ;  Haight  v.  "Badgeley,  15  Barb.y  502  ;  Pierrepont  v. 
Barnard,  6  jy.  Y.  [2  Seld-.],  279). 

In  the  last  case  the  question  of  license  is  fully  considered. 
Certainly,  where  a  party  has  for  years  been  in  the  habit  of  visit- 
ing the  house  of  another  without  objection,  a  license  will  be 
implied  :  any  other  rule  would  be  unreasonable  and  oppressive. 
In  this  case,  the  defendant  for  thirty  years  had  exercised  that 
privilege,  the  families  being  upon  intimate  terms,  and  upon  this 
ground  alone  the  jury  would,  in  my  judgment,  have  been  justi- 
fied in  finding  an  implied  license.  The  defendant's  case,  how- 
ever, does  not  rest  there :  both  plaintiff  and  defendant  testify 
to  an  express  permission  to  the  defendant  to  pass  along  the 
stone  wall,  and  the  evidence  does  not  show  that  the  defendant 
entered  the  premises  after  that  permission  was  revoked,  nor 
that  the  defendant  went  elsewhere  than  along  the  wall  after  the 
permission  was  given. 

I  do  not  think  a  fatal  error  was  committed  in  allowing  the 
witnesses  to  testify  in  regard  to  the  length  of  time  the  path  had 
been  there.  That  evidence  was  pertinent,  upon  the  question 
of  license,  to  ascertain  how  long  the  defendant  had  been  in  the 
habit  of  visiting  the  plaintiff's  house,  and  by  what  way  she 
went,  with  a  view  to  show  how  marked  and  notorious  had  been 
the  exercise  of  the  privilege,  as  all  these  circumstances  had  a 
tendency  to  characterize  the  transaction,  and  were  properly 
considered  in  determining  the  nature  and  extent  of  the  per- 


342  ABBOTTS'  PKACTICE  KEPOKTS. 

Martin  v.  Houghton. 

mission  relied  upon  to  establish  the  license.  It  did  not  by  any 
means  follow  that  those  facts  bore  necessarily  upon  a  question 
of  title. 

•  Indeed,  the  evidence  does  not  show  that  the  defendant  at- 
tempted to  assert  any  title  or  absolute  right  to  enter  upon  the 
premises.  On  the  contrary,  when  the  plaintiff  forbid  the  use 
of  the  path,  the  defendant,  by  the  permission  of  the  plaintiff, 
went  along  the  wall. 

No  principle  is  better  settled  than  that  a  party  may  litigate 
a  question  of  license  in  justices'  courts  (Dolittle  v.  Eddy,  7  Barb., 
1§\  Ex-parte  Coburn,  I  Cow.,  568;  3  Kent's  Com.,  452). 
The  author  says  :  "  License  is  an  authority  to  do  a  particular  act, 
"  or  series  of  acts,  upon  another's  land,  without  possessing  any 
"  estate  therein.  It  is  founded  on  personal  confidence,  and  is 
"  not  assignable,  nor  within  the  Statute  of  Frauds."  See  also 
Pierrepont  v.  Barnard  (6  N.  Y.  [2  Seld.],  279). 

In  reviewing  proceedings  of  the  justice's  court  great  liberality 
is  to  be  exercised,  and  a  judgment  is  not  to  be  reversed  for 
a  technical  error  which  does  not  affect  the  merits  (Bort  v. 
Smith,  5  Barb.,  283 ;  Spencer  v.  S.  &  W.  K.  R,  IfrBarb.,  382). 
I  am  of  opinion  that  the  defendant  established  a  license  to 
enter  upon  the  plaintiff's  premises,  which  constituted  a  defense 
to  the  action,  and  that  no  error  was  committed  by  the  justice, 
in  admitting  evidence  which  should  reverse  the  judgment  of 
the  justice's  court.  TBe  judgment  of  the  county  court  must  be 
reversed,  and  the  judgment  of  the  justice  affirmed,  w^th  costs. 


NEW  SERIES  ;  VOL.  I.  343 

Frink  v.  The  Hampden  Insurance  Company. 


FRINK  against  THE  HAMPDEN  INSURANCE 
COMPANY. 

Supreme  Court,  Third  District;  General  Term,  September, 

1865. 

PARTIES. — INSURANCE. 

Upon  a  policy  of  insurance  against  fire,  issued  to  A.,  loss,  if  any,  payable 
to  B.,  the  latter  may  maintain  an  action  in  his  own  name. 

The  cases  of  Grosvenor  v.  Atlantic  Fire  Ins.  Co.  (17  N.  Y.,  391) ;  Freeman  v. 
The  Fulton  Fire  Ins.  Co.  (14  Abb.  Pr.,  398) ;  and  Fowler  v.  New  York 
Indemnity  Ins.  Co.  (26  N.  Y.,  425),  explained.  . 

Appeal  from  an  order  of  the  court,  at  special  term,  overruling 
a  demurrer. 

The  complaint  alleged  the  defendants  to  be  an  incorporation, 
as  an  insurance  company,  under  and  by  virtue  of  the  laws  of 
the  State  of  Massachusetts ;  the  application  of  one  Richard 
Hurst,  of  the  village  of  Cohoes,  to  the  company,  to  be  insured 
against  loss  or  damage  by  fire,  upon  certain  property  owned  by 
him,  for  the  term  of  one  year  from  the  1st  day  of  August,  1863  ; 
that  the  defendants  became  insurers,  setting  out  the  certificate 
of  insurance  in  full,  "  loss,  if  any,  payable  to  J.  "W.  Frink,  as 
collateral,"  the  destruction  of  the  insured  property,  of  the 
value  of  more  than  the  amount  covered  by  the  policy,  and  all 
the  requisite  steps  to  charge  the  defendants ;  that  previous  to 
the  issuing  of  the  certificate,  the  plaintiff  had  loaned  to  Hurst 
his  promisory  notes,  to  an  amount  exceeding  four  thousand  five 
hundred  dollars,  and  which  were  in  the  hands  of  lona  fide 
holders,  and'that  he  was  still  liable  upon  said  notes  to  an  amount 
exceeding  the  sum  covered  by  the  certificate  ;  that  said  notes 
were  out-standing,  and  unpaid;  that  in  consideration  of  the 
premium  of  one  hundred  and  twelve  dollars  and  fifty  cents,  the 
defendants,  at  the  request  of  Hurst,  agreed  to  pay  the  loss,  if 
any,  to  Frink,  and  the  plaintiff  therefore  claimed  to  recover  the 


344:      ABBOTTS'  PRACTICE  EEPOETS. 

Frink  v.  The  Hampden  Insurance  Company. 

amount  of  the  loss.  The  defendants  demurred  generally,  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
actiom 

\ 

S.  Sand,  for  defendants. 
Ira  Shafer,  for  plaintiff. 

BY  THE  COURT.* — MILLEK,  J. — It  is  not  claimed  that  the 
plaintiff  had  any  insurable  interest  in  the  property  insured,  but 
it  is  insisted  that  he  was  the  appointee  of  Hurst,  the  insured,  to 
receive  the  loss,  if  any  was  incurred,  and  hence  is  entitled  to 
maintain  this  action. 

In  Grosvenor  v.  The  Atlantic  Fire  Ins.  Co.  (17  N.  Y.,  391) 
the  action  was  brought  by  the  mortgagee,  to  whom  the  loss  was 
payable,  and  it  was  held  that  he  could  not  recover,  because  of 
a  breach  of  the  conditions  of  the  policy  by  the  mortgagor. 
The  learned  judge  in  this  case  held  that  the  plaintiff  was  the 
appointee  of  the  party  insured,  to  receive  the  money  that 
.night  become  due  from  the  insurers  upon  the  contract.  He 
says,  "  The  undertaking  to  pay  the  plaintiff,  was  an  undertak- 
ing collateral  to,  and  dependent  upon  the  principal  under- 
taking to  insure  the  mortgagor.  The  effect  of  it  was,  that  the 
defendants  agreed  that  whenever  any  money  should  become 
due  to  the  mortgagor  upon  the  contract  of  insurance,  they 
would,  instead  of  paying  it  to  the  mortgagor  himself,  pay  it  to 
the  plaintiff. 

"  The  mortgagor  must  sustain  a  loss  for  which  the  insurers 
were  liable,  before  the  party  appointed  to  receive  the  money 
would  have  a  right  to  claim  it.  It  is  the  damage  sustained  by 
the  party  insured,  and  not  by  the  party  appointed  to  receive 
payment,  that  is  recoverable  from  the  insurers  (Macomber 
v.  The  Cambridge  Mutual  Fire  Ins.  Co.,  8  Gush.,  133)." 
He  then  proceeded  to  state  that,  "  The  insurance  being  upQn 
the  interest  of  the  mortgagor,  and  he  having  parted  with  that 
interest  before  the  fire,  no  loss  was  sustained  by  .him,  and  of 
course,  none  was  recoverable  by  his  assignee  or  appointee." 

The  effect  of,  and  the  irresistible  inference  to  be  drawn 
from  these  observations,  is,  that  but  for  the  fact  that  the  mort- 
gagor had  parted  with  his  interest,  and  had  sustained  no  loss, 

*  Present,  HOQEBOOM,  MILLER  and  INGALLS,  JJ. 


NEW  SERIES;   VOL.   I.  345 

Frink  v.  The  Hampden  Insurance  Company. 

the  plaintiff  could  have  recovered  as  his  appointee  (see  also 
Bid  well  v.  Northwestern  Ins.  Co.,  19  If.  Y.,  179,  183). 

The  case  above  cited  (IT  N.  J".,  391),  establishes  that  the 
loss  being  payable  to  another  party  instead  of  the  insured, 
was  merely  a  designation  of  the  person  to  whom  it  was  to  be 
paid  after  it  had  accrued,  and  was  not  an  assignment  of  the 
policy  because  payable  to  another.  • 

In  the  case  at  bar  it  was  an  insurance  of  Hurst,  and  the 
plaintiff  was  the  appointee  to  receive  the  money  in  the  event 
of  a  loss  by  fire.  It  was  only  an  agreement  collateral  to,  and 
dependent  upon  the  original  undertaking,  that  after  a  loss 
had  occurred  and  not  before,  the  money  should  be  paid  over 
to  the  plaintiff,  and  was  not  an  assignment  of  the  policy  be- 
fore any  loss.  If  the  case  of  Grosvenor  v.  The  Atlantic  Fire 
Ins.  Co.  is  a  reliable  authority,  then  it  was  not  necessary  for 
the  plaintiff  to  allege  in  his  complaint  that  he  had  an  insurable 
interest,  and  the  plaintiff  to  whom  the  loss  was  payable  as 
appointee,  can  maintain  this  action,  and  unless  there  is  some 
authority  that  overrules  the  doctrine  laid  down,  it  must  be 
considered  as  conclusive  in  favor  of  the  plaintiff's  right  to 
recover. 

The  defendants'  counsel  insists  that  there  is  such  authority, 
and  our  attention  has  been  particularly  directed  to  the  case 
of  Freeman  v.  The  Fulton  Ins.  Co.  (14  Abb.,  398)  which  is 
mainly  relied  upon  to  sustain  an  adverse  theory".  In  that 
case,  one  Stetson  was  the  owner  of  the  steamer  "  Cataline,"  at 
the  time  of  the  issuing  of  the  policy,  and  the  defendants  in- 
sured the  plaintiffs,  or  whom  it  might  concern,  and  the  loss, 
if  any,  was  payable  to  the  plaintiffs. 

It  was  held  that  the  complaint  was  demurrable,  and  that 
in  order  to  recover  upon  a  fire  insurance  policy  for  the 
amount  of  the  loss,  it  must  allege  that  the  plaintiffs  had  an 
interest  in  the  thing  insured  at  the  time  of  the  loss ;  unless 
the  claim  was  assigned  to  him  afterwards,  or  he  sues  as  trustee 
of  an  express  trust,  and  if  he  sues  as  trustee  or  agent,  the 
complaint  should  allege  the  existence  of  such  trust,  and  show 
his  authority  to  collect  the  amount  insured. 

To  make  the  case  cited  parallel  to  the  one  at  bar,  Stetson 
should  have  been  the  insured  party,  and  the  loss  payable  to 
the  plaintiffs.  As  it  stands,  the  plaintiffs,  or  whom  it  might 
concern,  were  the  parties  insured.  The  plaintiffs  had  no  in- 


346  ABBOTTS'  PRACTICE  KEPOKTS. 

Frink  v.  The  Hampden  Insurance  Company. 

surable  interest,  and  Stetson  was  not  insured,  nor  did  it  ap- 
pear that  the  plaintiffs  had  acted  as  the  trustees  or  agents  of 
Stetson,  the  owner. 

Entirely  a  different  question  was  presented  from  the  one 
now  considered,  .and  I  think  the  authority  last  cited  is  not  in 
conflict  with  17  N.  Y.  And  although  referred  to  approvingly 
in  Fowler  v.  The  K  Y.  Indemnity  Ins.  Co.  (26  N.  Y.,  425), 
yet  I  understand  it  was  only  for  what  it  actually  did  decide, 
and  not  as  sustaining  a  doctrine  adverse  to  the  former  case. 
•  The  facts  presented  by  the  complaint  here,  do  not  show  an 
assignment  before  loss  to  a  party  who  had  no  interest  in  the 
property  within  the  principle  of  several  cases  to  which  we 
have  been  referred  (Peabody  v.  Washington  Ins.  Co.,  20  Barb., 
340  ;  Fowler  v.  New  York  Indemnity  Ins.  Co.,  26  N.  Y.,  423  ; 
Ruse  -y.'Life  Ins.  Co.,  23  N.  Y.,  516  ;  Hooper  v.  Hudson  River 
Ins.  Co.,  17  N.  Y.,  427  ;  Grangers.  Howard  Ins.  Co.,  5  Wend., 
202),  but  a  case  where  the  relation  of  insurer  and  insured 
existed  between  the  defendant  and  Hurst,  the  owner  of  the 
property,  tin  til  a  loss  had  taken  place,  when  the  plaintiff,  as 
the  appointee  of  the  insured,  steps  in  and  claims  under  the 
agreement  that  the  defendants  should  pay  the  money  to  him. 

There  are  several  other  points  urged  by  the  defendants' 
counsel,  that  cannot  be  upheld,  if  the  views  already  expressed 
are  sound  and  maintainable,  and  hence  a  discussion  of  them 
is  not  required. 

My  opinion  is  that  the  case  of  Grosvenor  v.  The  Atlantic 
Fire  Ins.  Co.  is  a  decisive  authority  upon  the  question  dis- 
cussed, and  that  the  demurrer  to  the  plaintiff's  complaint  was 
not  well  taken. 

The  order  overruling  the  demurrer  must  be  affirmed  with 
costs,  with  leave  to  withdraw  the  demurrer,  and  put  in  an 
answer  upon  the  usual  terms.  \ 


NEW  SERIES  ;  YOL.  I.  347 

Soloman's  Case. 


SOLOMAN'S  CASE. 

Before  Hon.A.D.  fiussel,  City  Judge,  New  York,  June,  1866. 

EXTRADITION. 

In  order  to  give  the  governor  of  a  State  jurisdiction  to  issue  his  warrant  for 
the  rendition,  under  the  Constitution  of  the  United  States,  of  a  fugitive 
from  justice  of  another  State,  the  fugitive  must  be  demanded  by  the 
executive  of  the  latter  State,  a  copy  of  the  indictment  or  affidavit  before 
a  magistrate  charging  the  offence  must  be  produced,  and  such  copy 
must  be  certified  as  authentic  by  the  executive. 

An  affidavit  sworn  before  a  justice  of  the  peace,  and  a  certificate  by  the 
executive,  that  he  is  such  officer,  and  that  his  attestation  is  in  due  form, 
is  not  sufficient  in  this  respect. 

Habeas  corpus. 

Sidney  H.  Stuart,  for  the  relator.      t 
Van  Voorst  &  Flanagan^  opposed. 

RUSSEL,  J. — A  habeas  corpus  was  allowed,  directed  to  the 
Commissioners  of  the  Metropolitan  Police — commanding  them 
to  bring  before  the  city  judge  of  the  city  of  New  Tork,  at  his 
chambers,  Joseph  A.  Solomans,  and  O.  Pohaloko,  whom,  it  was 
alleged,  they  had  in  custody,  and  to  exhibit  the  cause  of  their 
detention. 

They  were  brought  before  him,  and  the  officers  returned 
that  they  had  them  in  custody  by  virtue  of  a  warrant,  issued 
by  the  governor  of  this  State ;  which  return  was  traversed 
by  the  prisoners,  and  a  copy  of  the  affidavit  on  which  the 
warrant  was  allowed,  was  annexed  to  said  traverse  :  by  which 
lit  appeared,  that  it  was  sworn  to  befo  re  *a  justice  of  the  peace, 
in  New  Orleans,  and  there  was  a  certificate  of  the  secretary  of 
State  of  Louisiana,  certifying  that  he  was  a  justice  of  the  peace, 
and  that  his  attestation  was  in  due  form  of  law. 

The  Constitution  of  the  United  States  prqvides  that  a  per- 
son charged  in  any  State  with  treason,  felony,  or  other  crime, 
who -shall  flee  from  justice,  and  be  found  in  another  State, 


348  ABBOTTS'  PRACTICE  REPORTS. 

Soloman's  Case. 

shall,  on  demand  of  the  executive  authority  of  the  State  from* 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction   of   the   crime  (Constitution    U.  &,    art. 
4,  §  2).  * 

Congress  has  defined  what  forms  of  process  are  necessary 
to  carry  out  or  enforce  that  provision,  and  how  the  same  are 
to  be  certified. 

By  the  act  of  Congress  framed  February  12th,  1793  (1 
Brightly* s  Digest  Laws  U.  /£,  293)  it  is  enacted  :  "  Whenever 
"  the  executive  authority  of  any  State  in  the  Union,  or  of 
"  either  of  the  Territories,  shall  demand  any  person  as  a  fugitive 
"  from  justice,  of  the  executive  authority  of  any  such  State 
"  or  Territory,  to  which  such  person  shall  have  fled,  and  shall 
"  moreover  produce  the  copy  of  an  indictment  found,  or  an 
"  affidavit  made  before  a  magistrate  of  any  State  or  Territory 
"  as  aforesaid,  charging  the  person  so  demanded  with  having 
"  committed  treason,  felony,  or  other  crime,  certified  as  authen- 
"  tic  by  the  governor  or  cLie  magistrate  of  the  State  or  Ter- 
u  ritory  from,  whence  the  person  so  charged  fled,  it  shall  be 
"  the  duty  of  the  executive  authority  of  'the  State  or  Territory 
"  to  which  such  person  shall  have  fled,  to  cause  him  or  her  to 
"  be  arrested  and  secured,  and  notice  of  the  arrest  be  given 
"  to  the  executive  authority  making  such  demand,  or  ~to  the 
"  agent  of  such  authority  appointed  to  receive  the  fugitive  ; 
"  and  to  catfse  the  fugitive  to  be  delivered  to  such  agent, 
"  when  he  shall  appear." 

This  act  is  summary  in  its  effect,  and  must  be  strictly  com- 
plied with ;  otherwise,  a  warrant  issued  under  it  would  be 
absolutely  void. 

In  order  to  give  the  governor  of  this  State  jurisdiction, 
three  things  are  requisite. 

First.  The  fugitive  must  be  demanded  by  the  executive  of 
the  State  from  which  he  fled. 

Second.  A  copy  of  an  indictment  found,  or  an  affidavit 
made  before  a  magistrate  charging  the ,  fugitive  with  having 
committed  the  crime. 

Third.  Such  copy  of  the  indictment  or  affidavit  must  be 
certified  as  authentic  by  the  executive.  If  all  these  pre- 
requisites have  been  complied  with,  then  the  warrant  of  the 
governor  was  properly  issued,  and  the  prisoners  are  legally 
restrained  of  their  liberty.  "We  must  look  at  -the  return  to 


NEW  SERIES  ;  YOL.  I.  349 

Van  Deusen  v.  The  Charter  Oak  Insurance  Companj. 

the  habeas  corpus^  and  the  .traverse,  in  order  to  ascertain 
whether  these  provisions  have  been  complied  with.  By  which 
traverse  to  said  return  it  appears,  and  it  is  not  denied,  that 
an  affidavit  charging  the  said  prisoners  with  getting  money 
under  fals6  pretences,  with  the  intent  to  cheat  and  defraud  the 
firm  of  Harlam  J.  Phelps  &  Co.,  in  New  Orleans,  in  the  State  of 
Louisiana,  was  presented  to  the  governor  of  the  State  of  New 
York. 

But  it  is  denied,  and  appears  from  the  certificate  of  the 
Secretary  of  State  of  New  York,  certifying  to  copies  of  said 
affidavit  so  presented  to  the  governor  as  aforesaid : — 

That  said  affidavits  were  not  authenticated  in  accordance 
with  the  said  act  of  Congress,  by  the  executive  of  the  State 
of  Louisiana ;  and  consequently  there  has  not  been  a  com- 
pliance with  the  Constitution  and  laws  of  the  United  States, 
and  the  governor  of  the  State  of  New  York  had  no  legal 
authority  to  issue  his  warrant  to  arrest  the  said  prisoners,  and 
to  direct  that  they  be  delivered  over  to  the  agent  of  the  State 
of  Louisiana  (9  Wend.,  220;  7  Law  R.,  386).  There  are  other 
questions  raised  on  the  face  of  the  warrant  of  the  executive 
of  the  State  of  New  York,  which  it  is  unnecessary  to  pass  on. 

I  am  of  opinion  that  the  proceedings  are  irregular  ;  and  that 
the  prisoners  are  not  legally  in  custody  of  the  officers ;  and  do 
direct  that  they  be  discharged. 


VAN  DEUSEN  against  THE   CHARTER   OAK  FIKE 
AND  MAKINE  INSURANCE  COMPANY. 

New  York  Superior  Court/  General  Term,  Mai/,  1863. 

PBOOFS   OF   Loss. — DISMISSAL  OF  COMPLAINT. — INSURANCE 

POLICY. 

Where  insurers  received  and  examined  the  proofs  of  loss  presented  by  the 
insured,  and,  in -answer  to  subsequent  inquiries  on  his  part,  whether  there 
were  any  further  proofs  that  he  could  show,  or  anything  further  was 


350  ABBOTTS'  PRACTICE  REPORTS. 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

wanted  of  him,  answered  that  there  was  not,  and  afterward  offered  to 
compromise  the  claim,  but  without  making  any  objection  to  the  proofs ; — 
Held,  that  they  could  not  defeat  his  action  on  the  policy  by  objecting  that 
the  magistrate's  certificate,  which  the  policy  required  should  accompany 
the  proofs  of  loss,  was  never  served  on  them. 

A  motion  to  dismiss  the  complaint,  in  such  case,  at  the  trial,  upon  the  ground 
that  the  papers  served  on  the  defendants  were  not  in  compliance  with  the 
terms  of  the  policy,  does  not  authorize  the  defendant  to  raise  the  objec- 
tion on  appeal  that  the  person  on  whom  the  magistrate's  certificate  was 
served,  was  not  the  authorized  agent  of  the  defendants  to  receive  it. 

Where  a  policy  of  insurance  upon  a  stock  of  merchandise  covered  the  goods 
sold  but  not  delivered,  and  its  printed  condition  provided  that  "  in  case  of 
any  transfer  or  termination  of  the  interest  of  the  insured  in  the  property, 
by  sale  or  otherwise,  *  *  *  the  policy  shall  be  void;"  and  "that  in 
case  of  any  sale,  alienation,  transfer  or  change  of  title  in  the  property  in- 
sured, *  *  *  or  of  any  individual  interest  therein,  such  insurance 
shall  be  void;  and  the  entry  of  a  foreclosure  of  a  mortgage,  or  the  levy 
of  an  execution,  or  an  assignment  for  the  benefit  of  creditors,  shall  be 
deemed  an  alienation  of  the  property  ;" — Held,  that  the  giving  of  a  chat- 
tel mortgage  upon  the  goods,  without  parting  with  the  possession,  or  the 
right  to  possession,  did  not  avoid  the  policy.  The  words  "  sale,  alienation 
or  transfer"  should  be  construed  to  mean  some  act  which  divests  the  title 
absolutely. 

Appeal  by  the  defendant  from  a  judgment  in  favor  of  the 
plaintiffs,  entered  on  a  verdict. 

The  action  was  brought  upon  a  policy  of  insurance,  and  was 
tried  before  Mr.  Justice  MONCKIEF,  and  a  jury,  on  December  5th, 
1862. 

By  the  policy,  the  defendants  insured  the  plaintiff,  Alonzo 
Van  Deusen,  "  against  loss  or  damage  by  fire  to  the  amount  of 
five  thousand  dollars,  on  merchandise  hazardous  and  not  hazar- 
dous, his  own,  or  held  by  him  in  trust  or  on  commission,  or  sold, 
but  not  delivered,  contained  in  the  brick  and  stone  building  sit- 
uate No.  40  Murray  street,  city  of  New  York." 

It  contained  a  clause  declaring  that  "  no  part  of  this  contract 
can  be  waived,  except  in  writing,  signed  by  the  secretary." 

Among  the  conditions  of  the  policy,  were  the  following : 

"  III.  Property  held  in  trust,  or  on  commission,  must  be  in- 
sured as  such ;  otherwise,  the  policy  will  not  cover  such  property ; 
and  in  case  of  loss,  the  names  of  the  respective  owners  shall  be 
set  forth  in  the  preliminary  proofs  of  such  loss,  together  with 
their  respective  interests  therein.  Property  on  storage  must  be 
separately  and  specifically  insured. 


NEW   SERIES;  VOL.   I.  351 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

"  If  the  interest  in  property  to  be  insured  be  a  leasehold,  or 
any  other  interest  not  absolute,  or  if  it  be  equitable,  it  must  be 
so  represented  to  the  company  in  writing,  with  the  true  title  of 
the  insured,  and  the  extent  of  his  interest,  and  so  expressed  in 
the  policy  in  writing,  otherwise  the  insurance  shall  be  void. 
And  this  policy  shall  not  be  construed  to  protect  the  interest  of 
any  person  not  named  herein  : 

"  [NOTE.]  By  '  property  held  in  trust '  is  intended  property 
held  under  a  deed  of  trust,  or  under  the  appointment  of  a  court 
of  law  or  equity,  or  property  held  as  collateral  security ;  in 
which  latter  case,  this  company  shall  be  liable  only  to  the  extent 
of  the  interest  of  the  assured  in  such  property. 

"  IV.  This  policy,  or  any  claim  arising  under  it,  shall  not  be 
assigned,  transferred,  pledged  or  sold,  either  before  or  after  a 
loss,  without  the  consent  of  the  company,  expressed  by  indorse- 
ment, made  thereon.  In  case  of  assignment,  transfer,  pledge  or. 
sale,  without  such  consent,  whether  of  the  whole  policy,  or  of 
any  interest  in  it,  the  liability  of  the  company,  present  and 
future,  shall  then  cease.  And  the  company  reserves  the  right 
to  elect,  either  to  consent  to  a  transfer  before  a  loss,  or  return  a 
ratable  proportion  of  the  premium  and  cancel  the  policy.  And 
in  case  of  any  sale,  alienation,  transfer  or  change  of  title  in  the 
property  insured  by  this  company,  or  of  any  undivided  interest 
therein,  such  interest  shall  be  void,  and  cease.  And  the  entry 
of  a  foreclosure  of  a  mortgage,  or  the  levy  of  an  execution,  or  an 
assignment  for  the  benefit  of  creditors,  shall  be  deemed  an  alien- 
ation of  the  property. 

"  In  case  of  claim  for  loss  or  damage  on  a  policy  assigned, 
where  there  is  no  actual  sale  or  transfer  of  the  property  insured, 
proofs  of  loss  shall  be  made  by  the  assured  in  conformity  with 
the  conditions  of  this  policy,  the  same  as  if.  no  assignment  had 
been  made ;  otherwise  this  policy  shall  be  void,  and  all  liability 
on  the  part  of  this  company  shall  cease." 

The  eighth  condition  alse  contained  a  provision  that  the  in- 
sured should,  in  case  of  loss,  deliver  an  account  and  prooft 
thereof  to  the  defendants,  and  should,  also,  "  produce  a  certificate 
under  the  hand  and  seal  of  a  magistrate,  notary  public,  or  commis- 
sioner of  deeds  (most  contiguous  to  the  place  of  the  fire,  and  not 
concerned  in  the  .oss,  as  a  creditor  or  otherwise,  or  related  to  the 
insured  or  sufferers),  stating  that  he  has  examined  the  circum- 
stances "  attending  the  loss  alleged,  and  he  is  acquainted  with 


352  ABBOTTS'  PKACTICE  EEPORTS. 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

the  character  of  the  claimants,  and  that  they  have  *  *.  sustained 
loss  to  a  specific  amount. 

The  goods  insured  were  almost  wholly  destroyed  by  fire  on  the 
5th  day  of  December,  1861.  The  plaintiff's  loss  was  eleven 
thousand  one  hundred  and  sixteen  dollars  and  seventy-nine 
cents.  Upon  the  trial,  Elisha  Peck,  the  agent  of  the  defendants 
in  the  city  of  New  York,  testified  that  immediately  after  the 
fire  he  wrote  to  the  defendants  to  send  somebody  down  to  look 
after  it,  and  they  sent  their  agent,  Chapman  (who  heard  of  the 
fire  a  day  or  two  after  it  occurred),  to  examine  into  the  circum- 
stances. He  arrived  in  New  York  on  the  9th  day  of  December, 
went  to  the  scene  of  the  fire  with  Peck,  and  made  a  critical  ex- 
amination, and  examined  the  plaintiff's  books  of  account. 

On  the  10th  Chapman  asked  the  plaintiff  for  his  proofs  of 
loss,  and  the  plaintiff  gave  to  him  the  paper  containing  them, 
which  Chapman  took  to  the  office  of  the  defendants,  in  Hart- 
ford, Conneticut,  and  the  defendants  produced  it  on  the  trial. 
The  plaintiff  and  another"  witness,  testified  that  two  or  three 
days  after  this,  and  before  Chapman  left  the  city,,  the  plaintiff 
asked  him  "  if  there  was  anything  further  he  could  do,  any- 
thing further  they  wanted  of  him.  The  reply,  was  there  was 
not ;  if  there  was,  they  would  let  him  know." 

After  the  plaintiff  rested,  the  defendants'  counsel  moved 
to  dismiss  the  complaint,  on  the  ground  that  the  paper  served 
on  the  defendants  as  above  was  not  in  compliance  with  the 
terms  and  conditions  of  the  policy,  as  a  prerequisite  to  the 
right  to  recover. 

The  court  denied  the  motion  ;  to  this  denial  and  decision 
the  defendants'  counsel  excepted. 

In  the  proofs  of  loss  it  was  stated  that  "  said  property  was, 
at  the  time  of  said  fire,  subject  to  a  mortgage,  executed  by  the 
deponent  to  Mark  R.  Yan  Deusen,  of  the  town  of  Alford, 
Berkshire  county,  Massachusetts,  dated  July  6th,  1861,  and 
filed  in  the  Register's  Office  for  th^  city  and  county  of  New 
York,  and  numbered  10,223,  and  which  contained  the  con- 
dition that  the  deponent '  should  pay  the  holders  ^hereof  when 
due,  or  cause  to  be  paid,  all  promissory  notes  which  (then) 
have  been  or  hereafter  may  be  made  and  signed  by  the  party 
of  the  first  part  (deponent)  as  principal,  and  indorsed  or 
signed  as  surety  by  the  party  of  the  second  part'  (mort- 


NEW  SEKIES;  VOL.  I.  353 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

gagee).    That  there  is  no  other  mortgage  or  incumbrances 
on  said  property." 

The  counsel  for  defendants  offered  in  evidence  the  chattel 
mortgage  mentioned  in  the  proofs  of  loss,  to  show  an  alien- 
ation, transfer,  or  change  of  title,  in  the  property  insured  ;  and 
it  was  admitted,  ngainst  plaintiff's  objection  and  exception. 
It  did  not  appear  that  the  mortgagee  ever  had  the  right  to 
take  possession,  or  had  actually  entered  into  possession  of  the 
property.  A  certificate  of  a  notary  was  made  and  delivered 
to  Elisha  Peck,  on  the  13th  day  of  December,  and  he  sent  it 
to  the  home  office,  a  day  or  two  after  he  received  it ;  but  the 
president  of  the  defendants  testified  that  they  never  received 
it.  The  plaintiff,  before  the  commencement  of  this  action, 
called  upon  the  defendants  for  payment  of  his  claim,  and  they 
refused  ;  bat  finally  offered  to  pay  a  portion  of  it,  by  way  of 
compromise.  There  was  no  evidence  that  they  ever  requested 
farther  proofs,  or  objected  to  payment  on  the  ground  that  the 
proofs  were  defective,  or  intimated  that  the  plaintiff  had  not 
complied  witli  the  terms  and  conditions  of  the  policy. 

The  defendants'  counsel  requested  the  court  to  charge  the 
jnry,  that,  by  the  terms  of  the  policy,  there  could  be  no  waiver, 
except  in  writing,  signed  by  the  secretary  ;  also  that  the  chat- 
tel mortgage  put  in  evidence  showed  that  there  was  such  a 
sale,  alienation,  transfer,  or  change  of  title,  in  the  property 
insured  by  defendants,  as  rendered  the  insurance  void,  and  it 
ceased.  The  court  refused  so  to  charge,  to  which  ruling  the 
defendants'  counsel  excepted. 

The  jury  rendered  a  verdict  for  plaintiff  for  five  thousand 
two  hundred  and  fifty-four  dollars  and  seventy  cents;  and 
judgment  having  been  entered,  the  defendants  appealed. 

Henry  C.  Pratt,  for  defendants,  appellants. — I.  The  court 
erred  in  not  dismissing  the  complaint.  The  plaintiff  alleges 
performance  of  all  the  conditions  on  his  part.  The  conditions 
of  the  policy  required  plaintiff  to  produce,  with  his  proofs  of 
loss,  a  formal  certificate  in  regard  to  certain  specified  facts. 
None  such  was  produced.  No  evidence  on  the  part  of  plain- 
tiff shows  a  performance.  Nor  does  it  show  a  waiver  of  such 
certificate  under  the  terms  of  the  policy.  Nor  is  a  waiver 
a  performance. 

II.  The  court  erred  in  not  charging  the  jury,  as  requested; 
N.  S.— VOL.  I.— 23. 


354      ABBOTTS'  PRACTICE  REPORTS. 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

that  tlu-re  could  be  no  waiver,  except  in   writing  signed  by 
the  secretary. 

III.  The  court  erred  in  not  charging  the  jury,  as  requested, 
that  the  chattel  mortgage  rendered  the  insurance  void.  That 
mortgage  was  a  sale  and  transfer  to  the  mortgagee,  of  the 
whole  legal  title  to  the  goods  and  chattels  mortgaged,  being 
"  the  property  insured  "  (Bank  of  Rochester  v.  Jones,  4  JV.  Y. 
[4  Comst.'],  497,  507;  Butler  v.  Miller,  1  N.  Y.  [I  Comst.~\,4QQ, 
500  ;  Southworth  v.  Isham,  3  Sandf.,  448  ;  Hull  v.  Caruley, 
2  Duer,  99,  106 ;  Rich  v.  Milk,  20  Barl.,  616  ;  Stewart  v. 
Hanson,  35  Maine,  508  ;  Shuart  v,  Taylor,  7  How.  Pr.,  251, 
254).  Thereupon,  by  plaintiff's  own  act,  the  policy  and  insur- 
ance were  made  void,  of  no  effect,  and  ceased  (Edmands  v. 
Mutual  Safety  Fire  Ins.  Co.,  1  Allen,  311 ;  Abbott  v.  Hamp- 
den  Mutual  Fire  Ins.  Co.,  30  Maine,  414 ;  Orrell  v.  Hampden 
Fire  Ins.  Co.,  13  Gray,  431). 

T.  D.  Pelton,  for  plaintiff,  respondent. — I.  The  defendant 
might  waive  a  compliance  with  the  conditions  in  the  policy 
relating  to  preliminary  proofs,  either  expressly  or  by  impli- 
cation, and  there  is  no  requirement  in  the  policy,  that  the 
waiver  should  be  in  writing,  and  signed  by  the  secretary.  In 
this  case,  a  waiver  may  be  implied  from  either  of  the  follow- 
ing facts. 

1.  From  the  declaration  of  the  defendants'  agent  (Franklin 
Ins.  Co.  v.  Coates,  14  Md.,  285 ;  Clark  v.  New  England  Ins. 
Co.,  6  Cash.,  342 ;  Conover  v.  Mutual  Ins.  Co.,  3  Den.,  254). 

2.  From  the  silence  of  the  defendants  touching  the  proofs 
(^Etna  Fire  Ins.  Co.  v.  Tyler,  16  Wend.,  400  ;  Savage  v.  The 
Corn  Exchange  Ins.  Co.,  4  Bosw.,  1 ;  Bilbrough  v.  The  Metro- 
polis IBS.  Co.,  5  Duer,  587 ;  O'Niel  v.  The  Buffalo  Fire  Ins. 
Co.,  3  N.  Y.  [3  Comst.},  122 ;  Kernochan  v.  The  Bowery  Ins. 
Co.,  17  N.  Y.,  428 ;  Child  v.  Sun  Mutual  Ins.  Co.,  3  Sandf., 
26,  42 ;  Vos.  v.  Robinson,  9  Johns.,  192 ;  Clark  v.  The  New 
England   Mutual   Ins.  Co.,  6   Gush.,  342;    Underbill  v.  The 
Agawam  Ins.  Co.,   Id.,  440  ;  Heath  v.  The  Franklin  Ins.  Co., 
I  Gush.,  257,  264 ;  Inland  Ins.  Co.  v.  Stauffer,  33  Penn.,  397  ; 
Allegre  v.  Ins.  Co.,  6  Ilarr.  <&  J.,  408 ;  Angett  on  Ins.,  §§ 
242,  249). 

3.  From  the  negotiations  and  offer  of  the  defendants  to  pay 
a  part  of  the  claim  (Bodle  v.  The  Chenango  Ins.  Co.,  2  N.  Y. 


NEW  SERIES ;  VOL.  I.  355 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

[2  Comst.],  53  ;  McMasters  v.  The  Western  Ins.  Co.,  25  Wend., 
379  ;  Westlake  v.  St.  Lawrence  Ins.  Co.,  14  Barb.,  206,  212). 

II.  The  object  of  the  condition  requiring  preliminary  proofs, 
was  fully  pecured  to  the  defendants  (Lawrence  v.  Oci>an  In?. 
Co.,   11  Johns.,  241;  Barbers.  Phoenix  Ins.  Co.,  8  Id.,  318). 

III.  The  proofs  having  been  accepted  without  objection,  it  is 
immaterial  whether  they  were  in  compliance  with  the  terras 
and  conditions  of  the  policy  or  not.     And  the  motion  to  dis- 
miss the  complaint  was  made  upon  a  specified  ground  (Boyn- 
ton  v.  Clinton  &c.  Ins.  Co.,  16  Barb.,  254  ;'Bumstead  v.  Divi- 
dend Mutual  Ins.  Co.,  12  N.  Y.  [2  K em.],  90). 

The  mortgage  put  in  evidence  by  the  defendants  'was  not 
Buch  an  alienation  as  rendered  the  insurance  void  (Shepard  v. 
The  Mutual  Ins.  Co.,  38  N'.  II.,  232  ;  Jackson  v.  Massachusetts 
Fire  Ins.  Co.,  23  Pick.,  418  ;  Conover  v.  The  Mutual  Ins.  Co.,  3 
Den.,  254  ;  Angell  on  Ins.,  §  58,  205 ;  1  Philips  on  Ins.,  §  286). 

BY  THE  COURT.* — BOSWORTH,  CH.  J. — The  objection  that  the 
preliminary  proofs  did  not  contain  a  certificate  of  a  magistrate, 
as  required  by  the  eighth  of  the  consditions  annexed  to  the 
policy,  cannot  be  first  taken  at  the  trial  (Bilbrough  v.  Metro- 
polis'Ins.  Co.,  5  £>uer,  587 ;  O'Niel  v.  The  Buffalo  Fire  Ins.  Co., 
3  JV.  Y.  [3  Cumst.},  128). 

The  objection  to  these  proofs,  taken  on  the  motion  to  dismiss 
the  complaint,  was  that  '•  the  paper  served  on  the  defendants, 
as  above,  was  not  in  compliance  with  the  laws  and  conditions 
of  the  policy,  as  a  prerequisite  to  the  right  to  recover."  The 
terms  of  the  objection  not  only  do  not  raise  any  question 
whether  the  person  on  whom  the  service  was  made,  was  a  pro- 
per person  for  the  purpose,  but  import  that  he  was. 

The  plaintiff  had  testified  that  "  either  Bowers  (the  presi- 
dent of  The  City  Fire  Insurance  Company,  which  had  also  in- 
sured the  same  property),  or  Chapman  (the  defendants'  agent), 
asked  for  the  proofs  of  loss,  and  I  went  and  got  them,  and 
handed  them  to  them,  and  they  examined  the  proofs ;  *  * 
two  or  three  days  afterward  we  had  a  conversation,  and  I  then 
asked  'if  there  was  anything  further  that  I  could  do;  any 
further  proofs  that  I  could  show  on  the  case  ;  anything  further 
they  wanted  of  me ;'  they  said  there  was  not ;  if  so,  they  would 
let  me  know."  *  * 

*  Present  BOSWOKTH,  CH.  J.,  MONCRIKF  and  WHITE,  JJ. 


356  ABBOTTS'  PEACTICE  EEPOETS. 


Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

The  defendants,  by  their  authorized  agent,  Elisha  Peck,  sub- 
sequently offered  to  settle  and  compromise  the  claim ;  but  no 
complaint  or  intimation  of  the  insufficiency  of  the  preliminary 
proofs  was  at  any  time  suggested. 

On  such  a  state  of  facts,  the  rule  stated  in  Bodle  v.  The 
Chenango  Mutual  Ins.  Co.  (2  N.  Y.  [2  Comst.],  5T,  58),  should 
be  applied,  and  the  defect  be  held  to  be  waived. 

The  only  other  question  of  substance  relates  to  the  effect  of 
the  giving  of  the  chattel  mortgage. 

The  policy  declares  that,  "  in  case  of  any  transfer  or  termin- 
ation of  the  interest  of  the  insured  in  the  property,  by  sale  or 
otherwise,  *  *  the  policy  shall  be  void." 

The  fourth  condition  declares  that,  "  in  case  of  any  sale, 
alienation,  transfer,  or  change  of  title  in  the  property  insured, 
*  *  or  of  any  individual  interest  therein,  such  insurance 
shall  be  void.  And  the  entry  of  the  foreclosure  of  a  mortgage, 
or  the  levy  of  an  execution,  or  an  assignment  for  the  benefit  of 
creditors,  shall  be  deemed  an  alienation  of  the  property." 

The  giving  of  the  mortgage  would  not  avoid  the  insurance,  as 
being  an  "  alienation,  sal?,  or  transfer  of  title,  within  the 
meaning  of  the  policy.  The  mortgagee  did  not  take  actual 
possession,  and  had  no  right  to  do  so,  until  the  plaintiff  made 
default  in  payment  of  the  moneys  secured  thereby  (Conover  -y. 
The  Mutual  Ins.  Co.  of  Albany,  1  N.  Y.  [1  Comst.^  290 ;  Eice 
v.  Tower,  1  Gray,  426). 

Does  the  giving  of  the  mortgage  make  a  "  change  of  title," 
within  the  meaning  of  the  policy?  If  it  does,  then,  if  the 
goods  were  mortgaged  when  insured,  payment  of  the  mort- 
gage before  the  loss,  would  also  work  a  change  of  title."  Such 
a  construction  makes  the  words  equivalent  to  alteration  or 
modification  of  t fie  nature  of  the  title. 

I  think  the  words  "  change  of  title,"  as  used  in  this  policy, 
should  be  construed  to  mean  some  act,  which  divests  it  abso- 
lutely ;  and  thus  permit  the  words,  "  the  entry  of  the  foreclosure 
of  a  mortgage  "  to  have  a  natural,  and  not  a  forced  applica- 
tion. 

Construing  the  whole  as  permitting  the  insured  to  mortgage, 
where  he  retains  possession,  and  has  the  right  to  possession, 
without  avoiding  the  policy,  then,  the  same  effect  is  given  to  an 
entry  to  foreclose  the  mortgage,  aa  to  the  levy  of  an  execu- 


NEW  SERIES;  VOL.  I.  357 

Van  Deusen  v.  The  Charter  Oak  Insurance  Company. 

tion  ;  either  of  which  the  parties  agree  shall  be  deemed  an 
alienation. 

Any  other  construction  would  restrict  the  the  application  of 
the  words,  "  the  entry  of  a  foreclosure  of  a  mortgage  "  to  goods 
mortgaged  when  the  policy  was  issued,  and  would  defeat  the 
policy  by  reason  of  the  mere  fact  of  paying  the  mortgage  prior 
to  a  loss. 

For  whatever  change  of  title  is  effected  by  the  mere  execu- 
tion of  a  mortgage,  a  corresponding  change  is  produced  by  sat- 
isfying it. 

Orrell  v.  Hampden  Fire  Ins.  Co.  (13  Gray,  431)  is  not  an  au- 
thority to  the  point,  that  a  mortgage  is  a  change  of  title,  within 
the  meaning  of  a  policy,  written  like  the  present.  The  con- 
cluding part  of  the  opinion  (2)  is,  that  to  constitute  a  breach  of 
the  condition  of  insurance,  "  there  must  have  been  an  actual 
snle  or  transfer  of  property,  valid  as  between  the  parties."  All 
else  that  is  said,  is  qualified  by  the  word  "perhaps,"  and  does 
not  touch  a  point  in  judgment. 

In  Abbott  v.  Hampden  Mutual  Fire  Ins.  Co.  (30  Maine,  414), 
one  article  of  the  defendants'  by-laws  was,  that  the  policy  should 
be  void  jf  the  assured  should  sell  or  alienate  the  property  in 
whole  or  in  part,  without  consent  of  the  company.  The  convey- 
ances in  that  case  were  held  to  be  an  alienation  in  part.  This 
case,  therefore,  has  not  much  application  to  the  case  before  us. 

In  Edwards  v.  Mut.  Safety  Fire  Ins.  Co.  (1  Allen,  311)  the 
by-laws  provide  that  "all  alienations  and  alterations  in  the 
ownership,  situation  or  state  of  the  property  insured  by  this 
company,  in  any  material  particular,  shall  make  void  any  policy 
covering  such  property."  A  subsequent  mortgage  of  the  prop- 
erty was  said  to  be  "  an  alteration  in  the  ownership.  *  *  It 
introduces  a  new  owner  to  the  extent  of  the  sum  secured  by  the 
mortgage,  and  to  the  same  extent  it  takes  away  the  direct  inter- 
est of  the  assured."  That  case  may  be  conceded  to  be  correctly 
decided  upon  the  particular  facts  of  the  case,  and  yet  not  be  an 
authority  in  support  of  the  proposition  that  a  mortgage,  though 
not  due,  and  not  giving  the  mortgagee  a  right  to  the  possession 
of  the  property,  makes  "  a  change  of  title  "  within  the  meaning 
of  the  policy  in  the  case  at  bar.  In  neither  of  the  three  cases 
last  cited,  does  there  appear  to  be  any  clause  in  the  by-laws  to 
the  effect  that  "  the  entry  of  the  foreclosure  of  a  mortgage  shall 
be  deemed  an  alienation." 


358  ABBOTTS'  PEACTICE  REPORTS. 

Strong  v.  Strong. 

Within  the  good  sense  and  spirit  of  the  terms  of  the  body  of 
the  policy,  and  of  the  fourth  condition,  the  words,  "  any  sale, 
alienation  or  transfer  "  should  be  construed  as  applying  to  acts 
which  terminate  the  interest  of  the  assured.  By  the  body  of  the 
policy,  property  "  told,  but  not  delivered"  is  insured.  This  shows 
that  "  sale  "  means  an  executed  contract  of  sale,  which  has  trans- 
ferred the  title.  Applying  the  maxim,  rtoscitur  a  socii*,  to  the 
words  "  change  of  title,"  and  keeping  in  mind  the  further  pro- 
vision that  '•  the  entry  of  the  foreclosure  of  a  mortgage  "  shall 
be  deemed  an  alienation,  the  conclusion  is  reasonable,  and,  I 
think,  clear,  that  the  change  of  title  here  meant  is  a  termina- 
tion of  it ;  and  that  the  giving  of  the  mortgage  no  more  worked 
a  change  of  title,  within  the  meaning  of  the  policy,  than  it  did 
a  transfer  or  alienation.  That  it  is  not  an  alienation  within  the 
meaning  of  the  policy,  is  settled. 

If  these  views  are  correct,  the  further  questions  involved  in 
the  other  exceptions  taken  need  not  be  considered,  and  the  judg- 
ment should  be  affirmed. 

Ordered  accordingly. 


%       STRONG  against  .STRONG. 
New  York  Superior  Court ;  Special  Term,  June,  1866. 

MOTION  FOR  ALLOWANCE  TO  WIFE  IN  DIVORCE. 

AB  a  general  rule,  when  an  action  for  divorce  is  brought  against  the  wife, 
and  she,  in  her  answer,  either  denies  her  guilt,  or  sets  up  affirmative  de- 
fences, such  as  forgiveness  or  recrimination,  or  does  both,  counsel  fees 
and  alimony  will  be  allowed  her,  unless  the  court  is  satisfied  that  she  is 
altogether  in  the  wrong,  or  has  no  reasonable  ground  of  defence. 

The  fact  that  on  a  trial  bad  by  a  jury,  on  issues  framed,  involving  a  denial, 
forgiveness  and  recrimination,  the  jury  disagreed,  is  enough  to  show  that 
she  has  reasonable  ground  of  defence,  without  the  positive  affidavits  of 
the  wife  and  of  witnesses  usually  required  on  motions  for  such  allowance. 

An  application  to  the  favor  of  the  court  should  not  be  denied  on  the  ground 
that  the  moving  party  is  in  contempt  of  another  court. 


NEW  SERIES ;  VOL.  L  359 

Slrjng  v   Strong. 

Muiiou  by  defendant  to  compel  payment  to  her  counsel  by 
the  plaintiff,  ot  a  sufficient  sum  to  meet  the  expenses  of  a  re- 
trial of  the  case,  and  to  stay  such  re-trial,  until  the  same 
should  be  paid. 

The  affidavit  of  one  of  the  defendants'  attorneys,  after  stat- 
ing the  existence,  in  his  judgment,  of  a  good  defence  upon  the 
merits,  stated  that  this  action  was  brought  by  the  plaintiff 
to  ob  am  a  divorce  from  the  defen<!ant,  who  at  the  time 
resided  in  the  city  of  New  York,  and  that  the  defendant  by 
her  an-wer  denied  the  allegations  of  the  complaint,  and 
alleged  grounds  for  a  divorce  in  her  favor  against  the  plaintiff, 
and  prayed  affirmative  relief.*  That  the  is.-ues  were  brought 
on  for  trial  in  this  court  before  Justice  GARVIN,  and  a  jury, 
November  23d,  1865  ;  that  such  trial  occupied  several  weeks, 
and  terminated  December  31st,  1865,  when  the  judge  dis- 
charged the  jury  because  they  declared  themselves  unable  to 
agree.  That  in  the  course  of  the  trial,  nineteen  witnesses 
were  examined  for  the  plaintiff,  and  forty-five  for  the  defend- 
ant ;  that,  subsequent  to  the  discharge  of  the  jury,  the  plain- 
tiff's attorney  served  notice  of  re-trial,  and  one  of  the 
attorneys  for  the  plaintiff  has  been  heard  to  avow  their  inten- 
tion of  pressing  a  re-trial,  but  no  such  notice  of  re- trial  has 
been  served  by  the  defendant;  that  the  separate  estate  of  the 
defendant  is  small,  and  wholly  inadequate  to  defray  the 
necessary  expenses  of  another  trial  of  this  action  ;  that  here- 
tofore, no  alimony,  allowance  or  counsel  fee,  has  been  applied 
for  against,  or  paid  by  the  plaintiff;  nor  has  he  paid  anything 
for  hiji-  support,  or  that  of  her  infant  daughter,  about  six 
years  old. 

The  affidavit  of  the  defendant's  brother  stated  that  he  was 
acquainted  with  the  facts  of  the  case ;  that  the  private  and 
separate  estate  of  the  defendant  does  not  exceed  five  thousand 
dollars,  which  amount  has  already  been  expended  in  the  pay- 
ment of  fees  to  counsel,  and  necessary  incidental  legal  ex- 
penses attending  the  late  trial,  which  was  advanced  by  her 
father;  that  the  defendant  has  not  pecuniary  means  to  meet 
the  expenses  of  a  new  trial,  which  the  plaintiff  is  seeking. 
He  is  informed,  and  believes  that  the  plaintiff,  Strong,  is  not 
engaged  in  any  profession  or  mercantile  business,  but  is  a  man 

*  See  ante,  233,  where  the  'case  is  reported. 


360  ABBOTTS'  PRACTICE  REPORTS. 

Strong  v.  Strong. 

of  wealth,  and  of  independent  pecuniary  resources,  and  able  to 
pay  the  expenses  of  the  defendant,  as  well  as  of  the  prosecu- 
tion of  the  action. 

The  plaintiff  has  admitted  himself  possessed  of  five  thousand 
dollars,  yearly  income.  lie  has  not  had  the  charge  of  any  ono 
hut  himself  and  child  of  twelve  years.  That  he  resides  with, 
his  mother,  a  woman  of  large  wealth,  and  that  upon  her  death, 
she  heing  now  seventy  years  of  age,  he  is  entitled  to  his  share 
of  a  large  amount  of  property.  Since  the  last  trial,  no  at- 
tempt has  been  made  by  the  defendant's  attorney  to  come  to 
a  re-trial. 

In  opposition  to  the  motion,  the  plaintiff's  own  affidavit 
was  read,  alleging  that  a  hal>en*  corpus  in  the  Supreme  Court 
had  been  sued  out  by  him  on  the  4th  of  June,  1804,  to  com- 
pel the  defendant  to  deliver  to  him  the  child  in  question,  but 
that  she  had  absconded  with  it,  and  ever  since  has  remained 
concealed  without  the  State  ;  that  the  suplemental  answer  was 
not  interposed  until  a  year  sifter  the  action  was  commenced, 
that  efforts  have  been  made  by  the  members  of  both  families 
to  have  the  issues  tried  by  reference  or  arbitration,  that  the 
defendant  could  not  have  known  of  the  acts  of  adultery, 
charged  in  the  supplemental  answer,  and  that  upon  the  trial 
the  evidence  of  them  was  conflicting  and  improbable;  that 
he  ia  not  a  man  of  wealth,  nor  able  to  pay  the  expenses  of 
both  sides  of  this  litigation,  that  his  entire  income  is  le.^s  than 
four  thousand  dollars  a  year,  and  that  he  receives  no  income 
from  his  father's  estate. 

In  addition,  there  was  a  card  read,  signed  by  some  of  the 
jurors  on  the  trial,  stating  how  they  stood  when  they  were  dis- 
charged. 

Elbriflge  T.  Gerry,  and  John  McKeon,  for  the  motion. — L 
There  being  no  verdict  rendered  in  the  case,  individual  opinions 
of  jurors  are  of  no  moment  (People  v.  Camel,  1  Park.  Cr.,  256  ; 
People  v.  Wilson,  8  Abb.  Pr.,  137 ;  People  v.  Hartung,  Id.,  132 ; 
Barring'on  on  Statut*-*,  20). 

II.  Any  formal  affidavit  of  innocence  is  unnecessary.  A  valid 
defence,  recrimination,  is  set  up,  and  the  court,  as  cu*to» 
uwrum,  is  bound  to  uphold  every  impediment  in  the  way  of  a 
divorce  (Osgood  v.  Osgood,  2  Patye,  621. 


NEW  SERIES;  VOL.  L  361 

Strong  v.  Strong. 

III.  Almost  as  of  course,  a  wile  is  entitled  to  alimony,  and 
the  expenses  of  her  suit  in  a  suit  between  herself  and  husband, 
out  of  his  property,  when  her  own  is  inadequate  to  defray  the 
incidental  expense  (Brey  v.  Brey,  1  ILigg.  Ecc.,  168,  note; 
D'Aguilar  v.  D'Aguilar,  Id  ,  787  ;  McKenzie  v.  Rhodes,  13  Abb. 
Pr.,^339  ;  3  Rev.  Stat.  [5th  ed.],  289,  §  72  ;  Lovedon  v.  Lovedon, 
1  Phill.,  209  ;  D'Oyley  v.  D'Oyley,  29  Law.  Jour.  \_N.  S.~\.  P., 
M.  &  A.,  165;  Stanfred  v.  Stanfred,  1  Ed.  Ch.,  317;  Ham- 
mond 1)  Hammond,  1  Clarke  Ch.,  153  ;  Wood  v.  Wood,  2  Paige, 
113  ;  Williams  v.  Williams,  3  Barb.  Ch.,  628  ;  Halloch  v.  Hal- 
loch,  4  Ifow.  Pr.,  160  ;  Fowler  v.  Fowler,  4  Alb.  Pr., 


IV.  Mrs.  Strong  has  never  been  guilty  of  contempt  towards 
this  court,  and  with  supposed  contempts  before  other  tribunals 
tliis  com  t  has  nothing  to  do  (Passmore  Williamson's   Case,   26 
Penri*.St.,  9).   The  habeas  corpus,  and  proceedings  resulting  from 
it,  were  parts  of  the  legal  machinery  employed  at  the  outset  of 
the  suit,  to  prejudice  her  rights  in  court. 

V.  So  the  offer  to  try  the  cause  before  a  referee,  under  the 
pretence  of  avoiding  public  exposure,  is  another  artifice,  and 
one  designed  to  deprive  her  of  a  constitutional  right  (4  Macc^.  H. 
of  L.,  ens.  162,  in  point). 

VI.  The  motion  should  be  granted  unconditionally. 

Henry  A.  Cram,  opposed.  —  I.  Alimony  is  not  granted  as 
matter  of  right,  but  purely  as  favor,  and  it  will  not  be  granted 
when  no  reasonable  chance  of  success  of  the  applicant  is  shown 
(Moon  v.  Moon,  I  Atk.,  276  ;  Watkins  v.  Watkins,  2  Id.,  96  ; 
Carpenter  v.  Carpenter,  19  How.  Pr.,  539). 

II.  Nor  is  alimony  granted  when  innocence  of  the  applicant 
is  not  averred  under  oath.      Her  absence  from  the  State  is   a 
frivolous  excuse  for  the  non-presentation  of  such  an  affidavit  on 
this  motion  (Osgood  v.  Osgood,  2  Paige,  161  ;  Wood  v.  Wood, 
cited  in  note). 

III.  The  contempt  committed  by  her  violation  of  the  writ  of 
habeas  corpus,  is  an  answer  to  this  motion,  and  any  order  should 
be   conditioned  on  her  bringing  the  child  she  now  has  within 
the  State,  or  on  her  consent  to  try  the  case  before  a  referee. 

IV.  It  does  not  appear  that  her  separate  estate  is  yet  ex- 
hausted (Morrill  v.  Merrill,  2  J3arb.  S.  Ct  ,  481). 

JONES,  J.  —  I  think  it  may  be  regarded  as  a  gene'ral  rule  that 
•when  an  action  for  divorce  is  brought  against  the  wife,  and  she, 


362  ABBOTTS'  PEACTICE  KEPORTS. 

Strong  t».  Strong. 

in  her  answer,  either  denies  her  guilt,  or  sets  up  affirmative  de- 
fences, such  as  forgiveness  or  recrimination,  or  does  both,  coun- 
sel fees  and  alimony  will  be  allowed  her,  unless  the  court  is  sat- 
isfied that  the  wife  is  altogether  in  the  wrong,  or  has  no  reason- 
able ground  of  defence,  in  which  case,  the  court,  in  the  exer- 
cise of  a  sound  discretion,  may  refuse  counsel  fee  and  alimony. 

Tjhe  numerous  cases  cited  on  the  argument  do  not  impugn 
this  general  rule ;  some  of  these  cases  merely  show  what  matters 
the  courts  have  considered  to  be  sufficient  to  show  that  the  wife 
is  altogether  in  the  wrong,  or  has  no  reasonable  ground  of  de- 
fence, while  others  show  that  under  the  circumstances  detailed 
in  them,  the  court  will  hold  that  the  wife  has  a  reasonable  ground 
of  defence,  and  that  she  is  not  altogether  in  the  wrong. 

Thus,  some  of  those  cases  hold  that  if  the  wife  do  not  deny 
her  guilt  under  oath,  or  do  not  either  swear  positively  to  the  al- 
legation constituting  her  affirmative  defences,  or  prove  those  al- 
legations by  the  oath  of  persons  having  positive  knowledge 
thereof,  then  the  court  will  say  that  either  the  wife  is  altogether 
in  the  wrong,  or  has  no  reasonable  ground  of  defence.  Other 
of  the  cases  hold  that  if  the  wife  denies  her  guilt  under  oath,  or 
positively  swears  to  the  allegation  in  her  answer  constituting 
affirmative  defences,  then,  although  affidavits  may  be  produced 
contradicting  her  positive  oath  of  innocence,  or  contradicting 
her  positive  oath  as  to  the  affirmative  defences,  still  the  court 
will  be  satisfied  either  that  she  is  not  altogether  in  the  wrong, 
or  that  she  has  a  reasonable  ground  of  defence.  One  case  inti- 
mates that  although  the  wife  may  not  be  able  to  swear  to  her 
innocence,  and  may  be  able  to  swear  only  on  information  and 
belief  to  the  allegations  constituting  her  affirmative  defences, 
yet  if  she  produces  the  positive  affidavits  of  those  who  know  the 
facts  constituting  such  affirmative  defences,  then  the  court  will 
be  satisfied  that  she  has  a  reasonable  ground  of  defence. 

In  the  present  case,  the  defendant,  by  her  original  answer, 
denies  her  guilt,  and  sets  up,  as  an  affirmative  defence,  forgive- 
ness by  the  plaintiif.  This  answer  is  not  sworn  to.  By  her  sup- 
plemental answer  she  sets  up,  as  an  affirmative  defence,  adultery 
committed  by  the  plaintiff.  This  answer  has  the  usual  verifica- 
tion required  by  the  Code.  By  this  verification  she  does  not 
swear  positively  that  the  recriminatory  charges  made  by  her  are 
true  of  her  own  knowledge.  Indeed,  the  affidavit  which  is 
made  on  which  to  found  the  motion  for  leave  to  file  a  supple- 


JSTEW  SERIES ;  YOL.  I.  363 

Strong  v.  Strong. 

mental  answer,  clearly  shows  that  tho^only  knowledge 'she  had 
of  the  recriminatory  charges  was  from  information  given  by 
others,  which  information  she  believed  to  be  true.  She  has 
never  sworn  to  her  innocence,  nor  to  forgiveness  by  the  plaintiff. 
From  this  statement  it  is  evident  that  if  the  application  had  been 
made  before  trial,  upon  the  complaint,  answer  and  supplemental 
answer,  it  must  have  been  denied  under  the  authority  of  the 
cases  cited  on  the  argument. 

The  question  now  presents  itself  whether  the  fact  of  a  trial 
having  been  had  by  a,  jury,  on  issues  framed,  which  resulted  in 
a  disagreement,  can,  under  any  circumstances,  take  the  case  out 
of  the  rule  which  obtains  on  motions  before  trial,  that  if  a  wife 
neither  swears  to  her  innocence,  nor  having  set  up,  as  an  affirm- 
ative defence,  recriminatory  charges  on  information  and  belief, 
which  are  denied  on  oath  by  the  husband,  brings  to  support 
those  allegations,  affidavits  of  witnesses  who  knew  the  facts,  ali- 
mony and  counsel  fees  will  be  denied. 

I  think  it  can,  and  not  only  that,  but  can  bring  the  case  with- 
in that  other  rule  which  obtains  in  motions  of  this  character 
made  before  trial,  viz. :  that  although  a  wife  may  be  unable  to 
swear  to  her  innocence,  and  may  be  able  to  swear  in  her  answer 
to  recriminatory  charges  on  information  and  belief  only,  yet  if 
she  bring  the  positive  affidavits  of  those  who  of  their  own  knowl- 
edge know  the  facts  constituting  the  recriminatory  charges,  ali- 
mony and  counsel  fees  will  be  allowed,  although  the  husband 
denies  the  charges  against  him  under  oath. 

If  the  evidence  adduced  at  the  trial  and  its  effect  on  the  jury 
is  such  as  to  show  the  court  that  there  was  positive  evidence  in 
support  of  the  recriminatory  charges,  given  by  witnesses  who  of 
their  own  knowledge  knew  the  fact,  and  tke  jury  disagreed, 
then  the  wife,  on  motion  after  judgment,  stands  in  the  same  (if 
not  better)  position  than  she  would  on  a  motion  made  before 
trial  founded  on  the  affidavits  of  the  witnesses,  embodying 
therein  the  matters  testified  to  by  them  on  the  trial. 

The  defendant  in  this  case  occupies  this  position.  There  was 
affirmative  evidence  adduced  in  support  of  the  recriminatory 
charges  against  plaintiff  by  parties  who  professed  to  know  the 
facts  of  their  own  knowledge.  This  matter  was  litigated,  as  well 
|as  all  others.  The  jury  disagreed.  Throwing  out  of  considera- 
tion the  card  of  the  jurors — which,  being  a  mere  ex  parte  state- 
ment, not  under  the  sanction  of  an  oath,  should  have  no  influ- 


364  ABBOTTS'  PRACTICE  REPORTS. 

Strong  v.  Strong. 

ence  on  the  decision  of  tfcis  motion — it  is  impossible  to  say  on 
what  issue  the  jury  disagreed,  or  how  they  stood.  For  aught  the 
court  knows,  they  disagreed  on  the  issue  of  the  recriminatory 
charges,  and  on  that  stood  eleven  for  the  defendant  against  one 
for  the  plaintiff.  In  such  case  the  court  cannot  say  she  has  no 
reasonable  ground  of  defence. 

But  let  us  consider  the  card  of  the  jurors.  By  that  it  appears 
that  the  disagreement  was  on  the  recriminatory  charges,  and 
that  the  jury  stood  two  for  the  defendant  against  ten  for  the 
plaintiff.  If  she,  on  the  past  trial,  has-been  able  to  produce 
such  proof  of  the  truth  of  her  recriminatory  charges  as  to  cause 
two  of  the  jurors  to  believe  them  to  be  true,  the  court  cannot  say 
but  that  she  may  ultimately  succeed  in  causing  the  whole  twelve 
to  believe  them  true. 

Defendant,  in  my  view,  stands  in  a  far  better  position  than  if 
she  had  made  her  motion  before  trial  on  ex  parte  affidavits  made 
by  the  persons  whom  she  called  on  the  trial  to  prove  her  recrim- 
inatory charges.  If  in  such  case  she  would  be  allowed  alimony 
and  counsel  fees,  notwithstanding  the  denial  on  oath  by  her  hus- 
band (see  Osgood  y.  Osgood,  2  Paige,  161),  she  should  now  be 
allowed  them,  after  those  persons  have  given  their  testimony 
orally,  and  been  cross-examined  with  the  result  of  impressiug 
two  jurors  with  the  truth  of  their  statements. 

All  the  cases  cited  on  the  argument  were  cases  of  motions 
before  trial.  I  think  they  have  no  application  to  this  case, 
and,  under  all  the  circumstances,  I  feel  I  would  not  be  war- 
ranted in  holding  that  defendant  has  no  reasonable  ground  of 
defence. 

But  it  is  urged  that  the  story  told  by  the  witnesses  who 
swore  in  support -«f  this  defence  is  too  improbable  to  be  be- 
lieved. Yet  at  least  two  of  the  jurors,  who  were  sworn  well 
and  truly  to  try  the  issues,  and  give  a  true  verdict  according  to 
the  evidence,  not  only  considered  it  probable  but  believed  ft 
to  be  true.  It  cannot  be  answered  that  they  were  recreant 
to  their  oath ;  on  the  contrary,  it  must  be  assumed  that  such 
was  their  honest  opinion.  The  fact  that  ten  jurors  believed 
otherwise  can  have  but  little  weight.  Men's  minds  run  in  dif- 
ferent channels. 

Although  the  minds  of  these  ten  were  so  differently  con- 
stituted from  the  minds  of  the  two  as  to  lead  them  to  a  dif- 
ferent conclusion,  yet  I  cannot  undertake  to  say  that  on  the 


NEW  SERIES ;  YOL.  I.  365 

Strong  v.  Strong. 

next  jury  summoned  fron  the  inhabitants  of  this  large  city,  tho 
minds  of  the  whole  twelve  may  not  be  so  constituted  so  nearly 
alike  to  the  minds  of  the  two  as  to  lead  them  to  the  same  con- 
clusion that  these  two  arrived  at. 

I  do  not  intend  to  express  my  opinion  on  the  question 
whether  the  bare  disagreement  of  a  jury  on  the  issue  of  the 
guilt  or  innocence  of  the  wife,  she  never  having  denied  her 
guilt  under  oath,  would  be  sufficient  to  satisfy  the  court  either 
that  she  was  not  entirely  in  the  wrong,  or  that  she  had  a 
reasonable  ground  of  defence. 

It  is  urged  that  defendant  is  in  contempt  of  tho  Supreme 
Court,  and  that  as  the  granting  of  this  motion  is  a  matter  of 
favor,  it  should  not  be  granted  while  she  is  in  contempt.  I  do 
not  so  understand  the  doctrine  on  this  subject ;  I  understand  it 
thus :  If  a  party  being  in  contempt  of  a  court  asks  that  same 
court  for  a  favor,  the  court  will  not  grant  it,  and  on  this  ground ; 
a  court  will  not  allow  a  party  to  say  :  "  I  contemn  your  author- 
ity ;  I  will  act  in  open  disregard  and  defiance  of  it ;  and 
while  defying  you,  I  will  ask  you  whom  I  thus  contemn  and 
defy  to  grant  me  a  favor."  The  reason  of  the  rule  does  not 
apply  when  the  favor  is  asked  of  one  court  while  the  contempt 
is  against  another. 

The  authority  of  the  court  in  which  the  favor  is  asked  has 
not  been  defied.  I  think,  moreover,  that  it  is  very  doubtful 
whether  the  bare  fact  that  a  party  is  charged  in  ex  parte  affi- 
davits (although  there  is  no  denial  of  them)  with  having  wil- 
fully disobeyed  an  order  of  the  court  will  be  sufficient  to  induce 
that  court  to  withhold  a  favor  from  such  party.  I  am  inclined 
to  the  opinion  that  to  induce  a  court  to  withhold  a  favor  on 
the  ground  that  the  applicant  is  in  contempt,  such  party  must 
have  been  adjudged  by  the  court  to  be  in  contempt. 

It  is  insisted  that  if  the  motion  is  granted  it  should  be  on 
condition  that  defendant  consents  to  a  reference.  I  see  no  rea- 
son why  a  wife  should  be  forced  to  forego  her  right  of  a  trial 
by  jury  simply  because  she  wishes  to  be  provided  with  means 
to  conduct  her  defence,  and  to  be  supported  pending  the  lit- 
igation. 

I  have  come  to  the  conclusion  that  counsel  fees  and  alimony 
should  be  allowed.  As,  however,  defendant's  counsel  on  the 
argument  expressly  waived  and  abandoned  that  portion  of  tho 
motion  which  called  for  alimony,  and  declined  to  receive  it, 


366  ABBOTTS'  PKACTICE  REPORTS. 

Finney  v.  Veeder. 

I  shall  not  t>rder  it.      The  court  will  not  thrust  on  a  party  a 
favor  which  he  does  not  ask  but  expressly  declines. 

With  respect  to  the  amount  to  be  allowed  for  counsel  fees, 
I  am  of  opinion  that,  under  all  the '  circumstances,  the  sum  of 
one  thousand  dollars  should  be  allowed,  with  liberty  to  the 
defendant  to  move  to  increase  it  on  further  affidavits,  showing 
more  positively  and  clearly  the  extent  of  plaintiff's  interest  in 
his  father's  estate,  whether  he  realizes  anything  therefrom,  and 
if  so,  how  much. 

Let  an  order  be  entered  directing  the  plaintiff  to  pay  to 
defendant  or  her  counsel,  Messrs.  McKeon  &  Gerry,  one  thou- 
sand dollars  toward  the  expenses  of  defending  this  action,  with 
liberty  to  defendant  to  move  to  increase  the  amount  on  further 
affidavits  showing  more  clearly  and  positively  the  extent  of 
plaintiff's  interest  in  his  father's  estate,  whether  he  realizes  any 
thing  therefrom,  and  if  so,  how  much.  No  costs  of  this  motion 
to  either  party.  The  order  to  be  made  without  imposing  any 
condition  on  def  sndant 


FINNEY  against  VEEDER. 

Supreme  Court,  Third  District ;    General  Term,  September ', 

1865. 

OFFEK  OF  COMPROMISE. — EVIDENCE 

An  offer  by  the  respondent,  on  an  appeal  from  a  judgment  in  a  justice's 
court,  to  reduce  the  amount  of  a  recovery,  is  not  admissible  in  evidence  on 
the  trial  of  the  appeal  in  the  county  court,  for  the  purpose  of  influencing  the 
jury  to  the  prejudice  of  the  respondent's  case. 

Appeal  from  a  judgment  of  the  County  Court  of  Albany 
county,  in  favor  of  the  defendant,  for  costs. 

The  action  was  commenced  in  a  justice's  court,  where  a  judg- 
ment was  rendered  in  favor  of  the  plaintiff  for  one  hundred 


NEW  SERIES  ;  VOL.   I.  367 

Finney  v.  Veeder. 

dollars  damages,  besides  costs.  From  that  judgment  the  de- 
fendant appealed  to  the  County  Court,  and  recovered  judgment 
for  costs.  After  the  notice  of  appeal  was  served,  the  plaintiff 
served  upon  the  defendant  the  following  offer : 

"  [Title  rf  the  Cause.'] 

"To  WILLET  &  HAWLEY,  Appellants  Attorneys. 

"  Gents :  Please  to  take  notice,  that  the  respondent  offers  to 
"  let  the  judgment  herein  be  corrected,  by  deducting  therefrom 
"  the  sum  of  twenty -five  dollars. 

"July  7th,  1862.  P.   D.   NIVEK, 

"Respondents  Attorney.'11 

This  offer  was  not  accepted  by  the  appellant. 

Ira  Shafer,  for  appellant. 
L.  Tremain,  for  respondent. 

Br  THE  COURT.* — INGALLS,  J. — The  only  question  involved 
in  this  appeal  is,  whether  error  was  committed  in  allowing  the 
above  offer  to  be  given  in  evidence  under  the  circumstances,  in 
the  manner  and  for  the  purpose  it  was  introduced.  The  only 
legitimate  effect  under  §  371  of  the  Code,  was  upon  the  question 
of  costs,  and  I  do  not  think  it  was  necessary  even  to  prove  it 
upon  the  trial  to  secure  the  benefit  of  that  provision,  as  it  might 
have  been  used  upon  the  adjustment  of  costs.  But  assuming 
that  it  could  properly  be  proved  upon  the  trial,  it  does  not  fol- 
low that  it  was  appropriately  received  upon  the  trial  in  the 
County  Court. 

It  appears  from  the  case  that  it  was  used  by  the  defendant 
for  a  purpose  wholly  unauthorized,  and  well  calculated  to  preju- 
dice the  plaintiff's  case.  Previous  to  the  introduction  of  the  offer, 
the  counsel  for  the  defendant  stated  to  the  jury  that  the  offer 
was  made  because  the  plaintiff  had  no  confidence  in  his  case. 
This  statement  was  objected  to  by  the  plaintiff's  counsel,  on  the 
ground  that  there  had  been  no  proof  on  the  subject,  and  if  an 
offer  had  been  made,  it  could  not  be  proved  to  the  jury.  The 
offer  was  then  given  in  evidence  by  the  defendant,  and  read 
to  the  jury,  under  the  plaintiff's  objection. 


363  ABBOTTS'  PRACTICE  REPORTS. 

Oakley  v.  Sears. 

It  is  insisted  by  the  defendant's  counsel  that  it  was  properly 
introduced  to  apprise  the  jury  of  its  effect  upon  the  question  of 
costs. 

If  it  be  assumed  that  this  position  is  sound,  the  difficulty  yet 
remains,  as  the  offer  was  not  used  for  that  purpose  ;  neither  the 
court  or  counsel  informed  the  jury  of  the  proper  effect  of  the 
offer.  On  the  other  hand,  we  must  assume,  from  the  facts  de- 
tailed in  the  case,  that  an  erroneous  impression  was  produced 
upon  the  minds  of  the  jury  in  regard  to  the  object  of  such  offer, 
which  was  allowed  to  rrmain  uncorrected  by  the  court,  and 
probably  did  influence  the  jury  to  the  prejudice  of  the  plaintiff. 
It  is  said  by  the  defendant's  counsel  that  as  the  verdict  was  for 
the  defendant,  it  is  apparent  that  no  injury  resulted  from  the 
introduction  of  the  offer,  as  it  could  only  affect  the  amount  of 
damages  in  case  the  plaintiff  prevailed  in  the  action. 

I  do  not  think  we  should  thus  assume,  as  it  is  impossible  to 
calculate  how  far  the  jury  might  have  been  influenced  by  the 
improper  use  of  such  evidence.  An  error  can  only  be  disre- 
garded where  it  affirmatively  appears  that  no  possible  injury 
could  arise  to  the  party  complaining  (Worrall  v.  Parmelee,  1 
N.  Y.  [1  Comst  ],  519). 

I  am,  therefore,  of  opinion  that  judgment  must  be  reversed, 
and  a  new  trial  had  in  the  County  Court,  with,  costs  to  abide 
tho  event. 


OAKLEY  against  SEARS. 
New  York  Superior  Court ;  General  Term,  May,  1863. 

NEW   TKIAL. — NEWLY  DISCOVERED   EVIDENCE. — CUMULATIVB 

TESTIMONY. 

In  an  action  against  the  drawer  of  a  bank  check,  the  defence  being  that  it 
was  given  for  the  benefit  of »  third  person,  on  an  agreement  that  it  wan 
to  be  paid  only  out  of  funds  to  be  provided  by  him,  the  plaintiff  testified 
that  before  he  took  the  check  the  defendant  told  him  that  he  had  security, 
and  would  pay  the  check,  and  that  he  (plaintiff)  took  it  for  value.  The 


NEW  SERIES  ;  VOL.  I.  369 


Oakley  v.  Sears. 


defendant  testified  that  he  never  had  any  conversation  with  plaintiff  be- 
fore the  latter  received  the  check.  After  verdict  for  the  plaintiff; — 
Held,  that  newly  discovered  evidence  of  declarations  of  the  plaintiff 
that  he  knew  before  he  took  the  check  that  it  was  made  on  the  condition 
alleged  by  the  defendant,  was  a  good  ground  for  granting  a  new  trial. 

The  circumstance  that  proof  of  such  facts  would  tend  to  discredit  the 
plaintiff,  does  not  convert  the  evidence  into  mere  impeaching  evidence. 

Nor  is  such  evidence  to  be  deemed  cumulative,  but  is  direct  and  indepen- 
dent testimony. 

Appeal  by  the  plaintiff  from  an  order  made  by  Mr.  Justice 
BARBOUR,  in  March,  1863,  granting  a  new  trial. 

The  action  was  tried  February  3d,  1863,  before  Mr.  Justice 
BARBOUR  and  a  jury,  and  a  verdict  rendered  -for  the  plaintiff. 
A  case  was  made  by  defendant,  upon  which,  as  well  as  upon 
affidavits,  asking  for  a  new  trial  upon  the  ground  of  newly  dis- 
covered evidence,  he  moved  at  special  term  for  a  new  trial. 
The  motion  was  granted,  and  from  the  order  granting  the  new 
trial,  the  defendant  appealed. 

The  action  was  brought  by  Thomas  B.  Oakley  against  Wil- 
liam S.  Sears, -upon  a  bank  check  drawn  by  the  defendant  to 
the  order  of  the  plaintiff;  and  the  defence  was  that  a  previous 
check  in  renewal  of  which  this  one  was  given,  was  made  at  the 
request  of  one  White,  and  delivered  to  him,  payable  to  plain- 
tiff's order,  with  the  understanding  between  the  defendant  and 
White  that  the  check  was  not  to  be  paid  until  White  gave  the 
defendant  funds  to  meet  it :  that  the  check  was  given  by  the 
defendant  to  White  for  the  purpose  of  enabling  White  to  bor- 
row money  of  the  plaintiff;  that  the  check  in  suit  was  given 
upon  the  same  conditions,  and  upon  the  surrender  of  the  orig- 
inal check ;  and  'that  White  never  gave  any  funds  to  the  de- 
fendant to  meet  the  check. 

The  plaintiff,  being  examined  as  a  witness  in  his  own  behalf, 
testified  that  he  paid  twelve  thousand  dollars  in  money  to  White 
for  the  original  check. 

The  defendant,  being  examined  as  a  witness  in  his  own  be- 
half, testified  that  the  original  check  was  given  under  the  cir- 
cumstances set  up  in  his  defence,  and  that  some  time  after  its 
date  the  plaintiff  called  upon  him  one  day  at  his  office,  saying, 
"  The  check — this  first  check,  had  not  been  jiaid  ;  said  I,  You 
know  the  arrangement,  that  you  are  not  to  have  the  money 
until  White  puts  funds  into  my  hands ;  whenever  he  puts  it  into 
N.  S.— VOL.  I.— 24. 


370  ABBOTTS'  PEACTICE  EEPOETS. 

Oakley  v.  Sears. 

my  hands  you  shall  have  it.  Said  he,  Do  you  expect  it  soon?  1 
said,  Mr.  "White  said  it  was  coming  soon,  and  whenever  it  comes 
you  will  get  it."  « 

The  plaintiff,  being  recalled  and  examined  on  his  own  behalf, 
testified  that  prior  to  taking  the  original  check  from  Mr.  White, 
"  Mr.  Sears  held  in  his  possession,  I  am  stating  that  which  Mr. 
Sears  told  me,  guarantee  for  the  payment  of  the  check.  Be- 
fore I  took  the  check  from  Mr.  Sears  I  wanted  to  know  whether 
the  check  was  good,  whether  Mr.  Sears  had  a  valuable  con- 
sideration for  it.  He  stated  that  Mr.  White  was  his  client 
with  a  lawsuit  pending  in  which  a  large  amount  of  money  had 
to  be  put  up  in  court.  He  had  collateral  security  with  which 
he  could  pay  by  twenty-four  hours'  notice,  and  he  would  ;  and  I 
accepted  the  check  upon  these  remarks  from  Mr.  Sears,  know- 
ing he  said  he  had  security  in  his  possession,  and  I  held  the 
original  check,  and  notified  him  by  letter  and  gave  him  the 
twenty-four  hours'  notice  that  I  required  it  paid.  To  extend 
the  time  to  enable  Mr.  White  to  consummate  his.  matters,  01 
Mr.  Sears,  his  lawyer,  the  second  check  was  given.  I  had  no 
conversation  with  him  about  the  second  check." 

The  plaintiff  had  a  verdict.  The  substance  of  the  newly  discov- 
ered evidence,  upon  which  the  defendant  moved,  is  stated  in  the 
opinion  of  the  court. 

George  R.  Thompson,  for  plaintiff,  appellant. — I.  No  error 
is  claimed  to  have  been  made  upon  the  trial,  «for  the  purposes 
of  this  appeal.  It  was  error  for  the  court  at  special  term,  to 
grant  a  new  trial  on  the  case. 

H.  The  question  then  is  whether  the  court  below  was  right 
in  granting  a  new  trial  on  the  ground  of  jiewly  discovered 
evidence.  It  is  insisted  that  no  newly  discovered  evidence  was 
revealed  upon  the  motion  sufficient  to  sustain  the  order.  In 
respect  to  granting  new  trials  on  the  ground  of  newly  discov- 
ered testimony,  the  following  principles  are  well  settled,  viz. : 

1.  The  testimony  must  have  been  discovered  since  the  ver- 
dict. 

2.  It  must  have  been  such  as  could  not  have  been  attained 
with  reasonable  diligence  in  the  former  trial. 

3.  It  must  be  material  to  the  issue. 

4.  It  must  go  to  the  merits  of  the  case,  and  not  to  impeach  the 
character  of  a  former  witness 


NEW  SERIES;  VOL.  I.  371 

Oakley  v.  Sears. 

5.  It  must  not  bo  cumulative  (People  v.  Superior  Court,  10 
Wend.,  285  ;  Porter  v.  Talcott,  1  Cow.,  359). 

(a.)  The  order  granting  the  new  trial  in  this  case  violates 
several  of  these  rules. 

(b.)  The  evidence  could  have  been  attained  at  the  trial  by 
defendant  with  reasonable  diligence.  The  case  ought  to  be 
free  from  laches  (Williams  v.  Baldwin,  18  Johns.,  489  ;  Hol- 
lingsworth  v.  Napier,  3  Cai.,  182  ;  Kendrick  v.  Delah'eld,  2  Id., 
67 ;  People  v.  Marks,  10  How.,  612 ;  Leavy  v.  Koberts,  8  Abb., 
310). 

(c)  The  evidence,  if  obtained,  is  not  material  to  the  issue,  and 
would  not  have  been  admitted  on  trial.      The  check  is  dated 
October  25th,  1860,  and  is  payable  October  20th,  1860.      The 
statement  alleged  to  have  been  made  by  plaintiff  to  Parsons  was 
not  made  until  November,  and  merely  shows  that  plaintiff  ' 
knew  at  that  time  how  Sears  came  to  give  the  check.      There 
is  not  a  particle  of  evidence  that  he  knew  anything  about  it 
when  he  parted  with  his  money  on  the  strength  of  the  check, — 
what  he  discovered  afterwards  amounts  to  nothing. 

(d)  The  proposed  evidence,  if  admitted,  would  tend  to  impeach 
the  plaintiff.      Oakley  swears  he  never  knew  of    any   such 
arrangement  as  that  testified  to  fey  Sears.     The  proposed  evi- 
dence directly  contradicts  that  statement.    When  the  action  is 
between  the  original  parties  a  new  trial  will  not  be  granted  to 
admit  proof  of  admissions  of  a  plaintiff  as  newly  discovered  evi- 
dence (Guyot  v.  Butts,  4  Wend.,  579).    As  to  what  is  impeach- 
ing evidence,  see  Brown  v.  Hoyt,  3  Johns.,  255 ;  Shumway  v. 
Fowler,  4  Id.,  425 ;   Harrington  v.  Bigelow,   2  Den.,   109 ; 
Meakim  v.  Anderson,  11  Barb.,  215 ;  Beach  v.  Tooker,  10  How. 
Pr.,  297.       The  proposed  evidence  establishes  no  new  fact. 
It  merely  goes  to  disprove,  if  evidence  at  all,  what  has  already 
been  sworn  to  by  Oakley.     A  new  trial  wjQl  not  be  granted  by 
means  of  the  discovery  of  such  evidence  (Halsey  v.  Watson, 
ICai.,  24 ;  S.  C.,  Col.  &  Cai.  Cos.,  160).    The  evidence  discov- 
ered is  cumulative.    If  newly  discovered  evidence  relates  to  any 
fact  proved  or  controverted,  whether  bearing  upon  the  issue  di- 
rectly or  collaterally,  it  is  cumulative   (Leavy  v.  Roberts,  8 
Abb.  Pr.,  310 ;  Brisbane  v.  Adams,  1  Sand.,  195.)     The  evi- 
dence is  to  a  point  testified  to  by  Sears,  and  denied  by  Oakley. 
It  is  strictly  cumulative,  because  it  goes  to  show  the  same  fact 
exactly  (See  Adams  v.  Bush,  23  Now.  Pr. ,  262.) 


372  ABBOTTS'  PRACTICE  REPOETS. 

Oakley  v.  Sears. 

L.  S.  Chatfield,  for  tlie  defendant,  respondent. — I.  What  is 
cumulative  evidence  is  not  very  well  settled,  but  the  leading  dis 
tinction  is  that  it  must  not  be  of  the  same  kind,  to  establish  the 
same  fact,  as  in  4  Wend.,  579,  where  the  new  evidence  is  direct, 
and  the  former  was  circumstantial,  to  prove  the  same  fact 
(Graham's  Pr.,  630.) 

Such  evidence  is  not  of  the  same  kind  or  character.  One  is 
direct,  the  other  is  circumstantial  (Seeley  v.  Chittenden,  4 
How.  Pr.,  265  ;  10  Wend.,  285  ;  Porter  v.Talcott,  1  Cow.,  381 

Simmons  v.  Fay,   1  E.  D.  Smith,  107  ;    Sargent  v.  , 

5  Cow.,  106 ;  10  Barb.,  307 ;  Guyot  v.  Butts,  4  Wend.,  579 ; 
Platt  v.  Muuroe,  34  Barb.,  279.)   '        . 

II.  "When  parties  are  the  only  witnesses,  if  evidence  other 
than  that  of  the  parties  can  be  obtained,  it  is  certainly  desirable 
that  it  should  be  obtained,  and  this  remedy  should  be  most  lib- 
erally applied. 

III.  The  gravamen  of  these  motions  is  the  furtherance  of  jus- 
tice, and  to  ascertain  the  real  truth.  It  is  purely  a  discretionary 
motion,  governed  so  far  as  it  may  be,  by  precedents  (Platt  v. 
Munroe,  34  Barb.,  279),  and  it  is  submitted  that  when  a  new 
trial  is  granted,  the  order  granting  is  not  an  appealable  order. 
(10  Barb.,  303.) 

BY  THE  COUKT.* — BOSWOKTH,  CH.  J. — The  plaintiff  and  de- 
fendant were  the  only  witnesses,  as  to  the  interview  between 
themselves,  and  what  was  then  said  between  them ;  or  as  the 
interviews  between  them  and  Mr.  White,  when  the  three  were 
together.  Their  testimony  is  in  direct  conflict  throughout.  The 
suit  is  upon  a  check  made  by  the  defendant.  The  judge 
charged  that,  "  if  Mr.  Sears  is  to  be  believed,  it  (the  check)  was 
delivered  to  White  to  be  used  in  a  certain  manner,  and  for  a 
certain  purpose.  It  was  delivered  with  the  understanding 
that  it  was  not  to  be  p"aid  by  Mr.  Sears,  the  maker  of  it,  except 
out  of  the  funds  which  should  come  into  his  hands,  belonging 
to  White.  If  you  believe  that  statement  of  Mr.  Sears,  the  de- 
fendant is  entitled  to  your  verdict." 

Assuming  that  instruction  to  be  correct,  as  perhaps  we  must 
for  the  purposes  of  this  appeal  (Tappan  v.  Butler,  7  Bosw.,  487 ; 
Bunten  v.  The  Orient  Mut.  Ins.  Co.,  4  JBosw.,  255),  but  without 
expressing  any  opinion  as  to  its  accuracy,  it  is  quite  clear  on' 

^*  Present,  BOSWOKTH,  Ch.  J.,  and  MONCKIEP,  and  WHITE,  JJ. 


NEW  SERIES ;  VOL.  I.  373 

Oakley  v.  Sears. 

this  assumption  that  the  newly-discovered  evidence  is  material. 
Evidence  of  the  plaintiff's  declarations  that  he  knew  when  he 
received  the  check,  that  it  "  was  a  loaned  check,  without  any 
consideration  being  paid  to  the  said  Sears  for  it,"  would  natur- 
ally lead  the  jury  to  believe  Mr.  Sears'  statement  as  to  the  origin 
of  the  check,  and  the  use  it  was  to  serve ;  as  his  testimony  was 
in  no  way  -impaired,  except  by  the  contradiction  by  the  plaintiff, 
in  testifying  what  took  place  between  him  and  Mr.  Sears  before 
the  original  check  was  accepted  by  the  plaintiff.  The  defend- 
ant explicitly  denied  that  he  knew  or  conversed  with  the  plaintiff 
before  he  received  the  original  check.  But  for  the  testimony 
given  by  the  plaintiff,  as  to  an  interview  between  himself  and 
the  defendant  before  the  plaintiff  received  the  original  check, — 
to  the  effect  that  Sears  told  him  "  he  had  collateral  security  with 
which  he  could  pay  by  twenty-four  hours'  notice,  and  he  would," — 
the  defendant,  under  the  charge  made,  for  aught  we  can  per- 
ceive, should  have  had  a  verdict  in  his  favor. 

Proof,  by  the  testimony  of  these  persons,  that  the  plaintiff 
knew,  or  had  notice«when  he  took  the  original  check,  that  it 
was  made  on  that  consideration,  and  as  a  memorandum  check 
and  not  to  be  paid  or  demanded  until  White  put  Sears  in  funds 
to  pay  with,  would  be  proof  of  facts,  which  with  Sears'  testi 
mony  as  to  the  origin  of  the  check,  if  unimpeached,  would 
entitle  him  to  a  verdict.  The  circumstance  that  proof  of 
such  facts  would  tend  to  discredit  the  plaintiff,  does  not  con- 
vert the  evidence  into  mere  in: peaching  evidence.  It  is  never- 
theless, as  truly,  direct  and  pertinent  evidence  to  the  merits,  as 
if  the  plaintiff  had  not  testified  to  any  conversation  between 
himself  and  Sears  before  taking  the  original  check. 

Declarations  of  the  plaintiff  that  he  knew  the  check  was  so 
made  and  was  to  be  so  used,  is  competent  evidence  to  establish 
the  same  facts,  and  is  none  the  less  evidence  in  chief,  because  it 
may  also  tend  to  impeach. 

It  is  not  cumulative  merely.  The  defendant  did  not  offer 
any  evidence,  nor  testify  himself,  either  as  to  any  declarations 
of  the  plaintiff  to  Parsons  on  the  subject,  nor  as  to  any  notice 
to  or  knowledge  of  the  plaintiff,  at  the  time  he  took  the  orig- 
inal check,  as  to  its  origin  and  the  use  to  be  made  'of  it,  except 
in  so  far  as  the  alleged  conversation,  prior  to  giving  the  secured 
check,  would  tend  to  show  he  had  such  knowledge.  The  plain- 
tiff denies  that  any  such  conversation  took  place., 


374  ABBOTTS'  PRACTICE   KEPOBTS. 

Smith  v.  Mulock. 

The  newly  discovered  evidence  ,js  direct  and  independent 
testimony  tending  to  show  notice  to  the  plaintiff  of  facts, 
which  if  communicated  and  existing,  might  prevent  his  recov- 
ering ;  it  is  not  to  a  point,  upon  which  any  testimony  was 
directly  given  or  offered  by  the  defendant  at  the  trial.  If  his 
testimony  has  any  claims  to  fairness,  it  is  to  a  matter  which 
he  had  no  right  to  expect  would  be  material.  Now  if  the 
check  was  made  as  he  swears  it  was,  and  was  transferred  as 
collateral  to  a  precedent  debt,  there  could  be  no  recovery. 

And  if  it  be  true,  as  the  plaintiff  swears,  that  he  paid 
twelve  thousand  dollars  cash  for  the  check,  he  will  of  course 
recover  if  he  took  it  in  good  faith,  and  without  notice  that  it 
was  fraudulently  diverted  from  the  purpose  for  which  it  was 
made.  But  if  he  had  the  notice  which  Parsons'  affidavit  tends 
to  show  he  had,  he  may  not  be  able  to  recover. 

What  Mr.  Parsons'  testimony  may  be  we  can  only  infer 
from  his  affidavit :  we  understand  it  to  import  the  making  of 
a  declaration  to  him,  by  the  plaintiff,  that  he  knew,  when  he 
took  the  original  check,  what  he  represents  the  plaintiff  to 
have  stated  that  he  knew.  » 

Simons  v.  Hay  (1  E.  D.  Smith,  H)7),  and  the  cases  there 
cited,  show  that  the  newly  discovered  evidence,  cannot  be 
regarded  as  merely  cumulative,  or  impeaching  testimony. 

The  order  should  be  affirmed. 


SMITH  against  MULOCK. 
New    York  Superior  Court;  General  Term,  July,  1863. 

PARTNERSHIP. — PLEADING. — CONTRACTS. — BILLS,  NOTES  AND 

CHECKS. 

A  provision  in  articles  of  co-partnership,  prescribing  a  definite  period  for 
its  continuance,  is  sufficient,  •without  any  prohibition  of  an  earlier  dissolu- 
tion, to  prevent  either  party  from  dissolving  it  at  will. 

Where  the  articles  of  co-partnership  do  not  give  either  partner  a  right  to 
dissolve  at  will,  an  allegation  by  one  partner,  contained  in  a  pleading, 


NEW  SEEIES  •  VOL.  I.  375 

Smith  v.  Mulock. 

and  not  responsive  to  any  proposal  of  his  adversary,  of  his  desire  to  dis- 
solve, is  not  equivalent  to  an  acceptance  of  an  offer  to  dissolve,  which  waa 
made  by  the  other  party  a  month  previous. 

WTiere  a  creditor  made  a  loan  to  his  debtors,  upon  an  agreement  that  they 
would  repay  it  out  of  the  proceeds  of  a  note  for  a  much  larger  amount 
which  they  had  procured  to  be  indorsed  by  a  third  person  for  their  ac- 
commodation, or  would  deliver  the  note  to  him ;  and,  the  note  not  being 
discounted,  they  subsequently  delivered  it  to  him,  in  satisfaction  of  the 
loan,  and  of  their  prior  indebtedness ; — Held,  that  the  contract  was  to  be 
regarded  as  entire,  and  that  he  had  parted  with  a  new  consideration, 
sufficient  to  make  the  indorsement  binding. 

It  seems,  that  the  indorser  in  such  case  would  not  be  exonerated  by  mere 
proof  of  notice  tp  the  purchasenof  the  note,  that  the  partnership  between 
the  makers  had  been  dissolved,  subsequent  to  the  date  of  the  note. 

Appeal  from  a  judgment  entered  on  a  verdict  in  favor  of  the 
plaintiff. 

The  complaint  in  this  action,  which  was  by  Willard  H.  Smith 
against  Maria  Mulock,  alleged,  in  the  usual  form,  as  the  cause 
of  action,  a  promissory  note  made  by  George  W.  "Wood  and 
"William  G.  Mulock,  by  their  firm  name  of  Geo.  W.  Wood  & 
Co.,  for  the  sum  of  two  thousand  five  hundred  dollars, — payable 
to  the  order  of  the  defendant,  and  indorsed  by  her,  and  subse- 
quently transferred  to  the  plaintiff  before  maturity,  and  for 
value. 

T^e  answer  of  the  defendant  stated  that  the  note  was  not 
made  or  signed  by  the  co-partners  of  the  firm,  or  for  the  busi- 
ness of  the  firm,  but  that  the  firm  name  was  signed  to  it  by 
Wood,  for  his  individual  benefit  and  gain,  and  in  fraud  of  the 
defendant  and  of  his  partner.  It  further  denied  that  the  note 
was  made  or  signed  on  or  about  its  date,  or  came  into  the  posses- 
sion of  the  plaintiff  before  maturity,'  or  for  value  ;  and  denied 
that  either  after  the  same  was  so  signed,  or  on  the  day  of  its 
date,  or  at  any  time  since  the  date  thereof,  she  endorsed  it  in 
writing,  or  ever  delivered,  or  authorized  it  to  be  delivered,  to 
the  plaintiff;  and  denied  that  the  plaintiff  was  the  lawful 
holder  or  that  the  defendant  was  justly  indebted. 

It  further  alleged  that  this  action  was  prosecuted  in  the  name 
of  the  plaintiff,  for  the  benefit  and  at  the  request  of  Wood,  and 
in  fraud  of  the  defendant.  Also,  that  the  indorsement  was 
made  before  the  note  had  any  date,  time  of  payment,  or  signa- 
ture of  maker,  and  was  without  consideration  and  for  accommo- 
dation of  the  firm  named  ;  and  that  it  was  obtained  from  de- 


376  ABBOTTS'  PRACTICE  REPORTS. 

Smith  v.  Mulock. 

fendaiit  by  false  representations  alleged  to  have  been  made  by 
Wood,  and  another  person,  a  dormant  partner.  Other  facts 
appear  in  the  opinions. 

The  cause  was  tried  before  Mr.  Justice  BAKBOUK,  and  a  jury, 
on  the  5th  day  of  February,  1863.  The  jury,  under  the  direc- 
tion of  the  coort,  found  a  verdict  for  the  plaintiff  for  the  amount 
of  the  note,  and  interest ;  and  judgment  thereon  having  been 
entered,  the  defendant  now  appealed. 

James  T.  Brady  <&  Francis  Byrne,  for  defendant,  ap- 
pellant.— I:  The  notes  were  endowed  by  the  appellant,  with- 
out consideration,  and  solely  for  the  accommodation  of  said  firm, 
and  to  be  used  during  its  existence,  and  for  its  business. 

II.  The  agreement  of  partnership  did  not  contain  a  stipula- 
tion (of  a  negative  character)  "that  the  co-partnership  should 
not  be  dissolved  :  therefore  "  either  party  "  might,  "  by  his  own 
act,"  dissolve  the  partnership,  "  unless  restrained  by  the  com- 
pact between  them  to  continue  it  for  a  definite  period  "  (Gris- 
wold  v.  Waddington,  15  Johns.,  57  ;  affirmed,  16  Johns.,  438  ; 
19  Johns.,  538). 

And  Mulock  effectually  dissolved  said  firm  by  the  service  of 
his  notice  and  publication  of  the  same,  and  Wood  assented 
thereto,  by  his  statement  in  his  answer  .on  oath  in  the  -  action 
brought  to  dissolve  the  co-partnership  "  that  the  defendant  is 
desirous  of  having  the  partnership  aforesaid  terminated  and 
dissolved."  The  firm  was,  therefore,  on  February  1st,  1862, 
"  dissolved  by  mutual  consent." 

III.  The  right  of  one  to  bind  another  by  the  signature  of  -the 
firm  name  i*s  not  derived  from  the  relation  of  partners,  but  on  a 
presumed  agency  for  each  other  for  that  purpose,  and  is  limited 
to  the  duration  of  such  partnership,  and  ceases  on  the  dissolu- 
tion ;  and  then  neither  can  "  bind  the  other  by  issuing  notes, 
signed  with  the  name  of  the  partnership  "  (Lansing  v.  Gaines,  2 
Johns.,  300) ;  nor  endorse  note  or  bills  given  to  the  firm  before 
the  dissolution  even  though  authorized  to  settle  partnership 
debts  (Sandford  v.  Mickles,  4  Johns.,  224) ;  nor  even  renew  a 
partnership  note,  &c.     (National  Bank  v.  Norton,  1  Hill,  572  ; 
S.  P.,  Mitchell  v.  Osborn,  2  Hill,  520  ;  S.  P.,  Lusk  v.  Smith,  8 
Barb.,  570 ;  Kirby  v.  Hewitt,  25  Barb.,  607  ;  James  v.  Pope,  5 
Smith,  324 ;  City  Bank  of  Brooklyn  v.  McChesney,  20  N.   Y.> 


NEW  SERIES;   VOL.   I.  377 

Smith  v.  Mulock. 

241 ;  City  Bank  of  Brooklyn  v.  Pearborn,  Id.,  244 ;  Robinson  v. 
Fuller,  24  N.  T.,  572). 

'  IV.  This  is  not  an  action  against  one  who  was  a  partner  in 
the  firm,  but  against  an  innocent  person  whose  authority  to  tho 
firm  to  bind  her  was  limited  to  the  time  when  the  firm  was  in 
existence;  the  partnership  having  been  dissolved,  the  authority 
was  immediately  extinguished  (Michigan  Ins.  Co.  v.  Leaven- 
worth,  30  Vcr.,  11). 

V.  The  plaintiff  acted  in  collusion  with  Wood,  and  took  the 
note  sued  upon  in  payment  of  the  two  thousand  and  seventy  dollar 
note  that  was  protested,  and  as  payment  of  five  hundred  dollars 
he  had  previously  loaned  to  said  Wood;  the  circumstances 'that 
the  firm  was  insolvent  and  closing  up  its  business;  that  the  pro- 
perty was  being  removed  from  the  store ;  that  the  safe  was 
beinf  disposed  of,  and  that  a  lady  was  the  endorser,  were  suffi- 
cient to  put  him  on  inquiry. 

VI.  The  statement  in  the  answer  of  the   defendant  .George 
W.  Wood  produced,  was  proper  evidence  of  a  consent  to  dis- 
solve the  partnership,  and  ought  to  have  been  submitted  to  the 
jury,  and  the  exception  is  tenable. 

VII.  The  several  requests  of  the  counsel  of  the  defendant  to 
charo-e  should  have  been  acceded  to,  and  the  facts  should  have 
been  submitted  to  the  jury  for  their  determination,  and  the 
exceptions  to  the  rulings  and  directions  are  valid  (Bidwell  v. 
Laurent,  17  How.  Pr.,  357). 

Henry  W.  Johnson,  for  plaintiff,  respondent ; — cited,  as  to 
the  sufficiency  of  the  proof  of  the  note,  and  the  authority  to 
make  it  Story  on  Pnom.  Notes,  §§  135,  380  &  387  ;  Erwin  v. 
Downs,  5  N.  Y.  [1  Seld.~],  575-;  Ogden  v.  Blydenburgh,  1  Hilt., 
183.  And  as  to  the  presumption  that  plaintiff  was  a  oona  fide 
holder,  Vallett  v.  Parker,  6  Wend.,  615  ;  Ross  v.  Bedell,  5 
Duer,  462 ;  Case  v.  Mechanics'  Bk'g  Ass'n,  4=  N.  T.  [4  Comst.], 
166. 

BT  THE  COURT.* — ROBERTSON,  J. — The  defendant  became 
endorser  of  the  promissory  note,  in  suit  in  this  action,  by  writ- 
ing her  name  on  the  back  of  a  piece  of  blank  paper,  and  de- 
livering the  same  to  her  two  sons,  with  intent  that  they  should 
write  a  promissory  note  on  the  face  thereof,  to  be  used  by  them 

*  Present,  ROBERTSON,  WHITE  and  BARBOUR,  J  J. 


3Y8  ABBOTTS'  PRACTICE  EEPOETS. 

Smith  v.  Mulock. 

for  the  benefit  of  tlie  firm  of  which  they  were  members.  She 
now  claims  that  the  firm  in  which  they  were  partners  was  dis- 
solved before  such  note  was  passed  away ;  that  one  of  her  sons 
subscribed  the  name  'of  the  firm  to  such  promissory  note  after 
the  dissolution,  and  passed  the  note  to  the  plaintiff  in  satisfac- 
tion of  a  precedent  indebtedness  ;  or  with  knowledge  of  such 
dissolution.  * 

The  partnership  of  the  defendant's  sons  began  in  January, 
1860,  to  continue  three  years,  under  an  agreement  in  writing. 
The  note  in  suit  came  into  the  plain  tiff's  possession  in  Febru- 
ary, 1862.  In  January  previous  one  of  such  sons  (Mulock), 
served  upon  the  other  (his  partner,  Wood),  and  another  per- 
son (Ackerman),  whom  he  claimed  to  be  a  partner,  a  written 
notice  that  he  had  dissolved  such  partnership.  A  like  notice 
was  published  by  the  same  partner  in  two  papers,  in  the  city 
pf  New  York,  of  large  circulation.  Five  days  previous  to  serv- 
ing such  notice  the  partner  giving  it  (Mulock),  commenced  an 
action  against  his  co-partner  (Wood),  and  Ackerman,  to  dissolve 
such  partnership,  in  which  he  obtained  an  injunction.  Subse- 
quently, after  discontinuing  that  action,  he  began  a  new  one 
for  the  same  purpose.  As  the  complaint  in  that  last  action  was 
not  in  evidence,  it  does  not  appear  what  allegations  were  made 
in  it,  in  regard  to  a  dissolution.  The  answer  in  it,  however, 
put  in  on  the  1st  of  February  1862,  contained  this  phrase: 
"  This  defendant  is  desirous  of  having  the  partnership  afore- 
"said  terminated  and  dissolved."  This  is  claimed  to  have 
produced  an  actual  dissolution,  by  construing  the  notice  of 
the  12th  of  January  to  have  been  an  offer,  and  such  allegation 
an  acceptance  of  it.  The  original  agreement  made  no  provi- 
sion for  a  dissolution ;  and  I  apprehend  where  such  an  agree- 
ment prescribes  a  definite  period  for  the  continuance  of  a  part- 
nership, it  is  sufficient,  without  prohibiting  an  earlier  dissolution, 
in  order  to  deprive  the  parties  to  it  of  the  right  of  dissolving 
at  will  (Griswold  v.  Waddington,  16  Johns.,  438 ;  S.  C.,  15 
Johns.,  57).  The  announcement  to  the  court  by  a  party  to  an 
action,  in  a  pleading,  when  not  responsive  to  any  proposal  of  his 
adversary,  of  a  readiness,  or  even  of  the  most  earnest  desire  to 
dissolve  a  partnership,  cannot  be  converted  into  a  contract  in 
pais,  or  stipulation  of  record ;  in  the  former  case  to  be  enforced 
by  a  specific  performance,  or  in  the  latter  by  a  decree  without 
further  litigation.  Still  less  could  it  be  construed  into  the 


NEW  SERIES  ;  VOL.  I.  379 

Smith  v.  Mulock. 

acceptance  of  an  offer  to  dissolve,  made  a  month  before  ;  if  the 
notice  in  January  was  such,  and  not  a  mere  notification  of  the 
determination  of  the  party  notifying,  whatever  his  partner  might 
jay.  This,  therefore, -not  creating  a  dissolution,  and  there  be- 
ing no  other  evidence  of  one,  there  was  no  question  upon  it  for 
the  jury  ;  a  mere  willingness  to  dissolve  being  no  evidence  of  a 
previous  dissolution. 

The  consideration  given  for  the  note  in  question,  according 
to  the  plaintiff's  testimony,  was  a  loan  of  tive  hundred  dollars, 
a  few  days  before  the  14th  of  February.  This  loan  was  made 
upon  a  promise  either  to  repay  the  same  out  of  the  proceeds 
of  the  note  in  suit,  if  it  could  be  discounted,  or  to  deliver^  that 
note.  It  was  not  discounted,  but  was  delivered  to  the  plaintiff 
in  satisfaction  of  such  loan,  and  a  prior  note  of  the  same  firm, 
held  by  him.  This  testimony  is  not  contradicted  even  by  the 
partner  who  delivered  it  (Wood).  The  promise  to  deliver  the 
note  or  its  proceeds  in  consideration  of  the  loan,  entitled  the 
plaintiff,  in  equity,  to  one  or  the  other ;  and  the  time  of  the 
application  of  the  residue  of  the  plaintiff's  advance,  consisting 
of  the  prior  note,  to  such  new  note,  whether  at  the  time  of  the 
agreement  or  when  the  latter  was  delivered,  was  immaterial. 
The  contract  was  entire,  and  a  new  consideration  parted  with, 
sufficient  to  make  the  indorsement  binding  on  the  defendant. 

Even  if  the  plaintiff  had  or  was  bound  to  take  notice  of  the 
dissolution  of  the  firm,  that  knowledge  would  have  an  entirely 
different  effect  upon  the  liability  of  the  member  of  the  firm 
who  did  not  sign  the  note,  and  that  of  the  defendant.  With- 
out some  authority  remaining  in  the  partner  signing,  the  other 
partner  would  not  be  liable.  But  the  defendant  would  be 
liable  as  endorser,  whosoever's  name  was  subscribed  to  the 
note,  unless  the  purchaser  had  notice  of  the  limitation  of  the 
authority  to  make  a  note,  to  drawing  one  for  the  benefit  of 
the  firm,  and  signed  by  it.  The  note  in  this  case  was  delivered 
by  one  of  that  very  firm,  to  a  purchaser,  to  discharge  a  liabil- 
ity incurred  by  that  firm.  The  partner  delivering  it  was  re- 
sponsible at  all  events,  and  it  was  not  incumbent  Oil  the 
plaintiff  to  inquire  who  else  was,  provided  the  defendant  was. 

But  in  fact  the  case  does  not  disclose  any  very  clear  request 
(to  submit  any  controverted  question  of  fact  to  the  jury,  or  to 
give  them  any  instruction  as  to  any  point  of  law.  The  re- 
quest to  submit  the  question  "  Whether  the  plaintiff  parted 


380  ABBOTTS'  PRACTICE  REPORTS. 

Smith  v.  Mulock. 

"  with  value,  without  notice  sufficient  to  put  him  upon  in- 
"  guiry  as  to  the  liability  of  the  endorser,  or  the  validity  of 
"  the  paper"  was  not  sufficiently  definite  or  pointed.  The  lia- 
bility of  the  endorser,  or  the  validity  of  the  paper,  was  a  ques- 
tion of  law,  and  not  of  fact  alone.  The  facts  which  were  to 
absolve  the  defendant  from  liability  were  either  the  dissolu- 
tion of  the  firm,  and  knowledge  of  it  by  the  plaintiff,  or  some 
limitation  of  the  use  to  which  the  note  was  to  be  applied, 
transgressed  in  passing  it  to  him. .  The  notice,  neces- 
sary thus  to  absolve  the  defendant,  was  of  course  of  evi- 
dentiary facts,  leading  to  the  discovery  of  such  ulterior  facts. 
A  mere  notice  to  the  plaintiff,  that  the  endorser  would  not  be 
liable,  without  knowledge  of  the  facts  by  which  she  was  to 
escape  liability,  would  not  acquit  her ;  and  an  inquiry  which 
would  end  in  that  information  alone  would  be  of  no  avail. 
Of  course,  if  that  information,  when  obtained,  would  not  render 
the  note  void  in  the  hands  of  the  plaintiff,  notice  of  facts 
leading  to  an  inquiry  for  it  would  be  immaterial.  But  there 
was  no  evidence  of  any  facts  constituting  notice  of  anything 
to  put  the  plaintiff  on  his  guard.  Notice  that  the  makers  of  a  note 
signed  with  their  firm  name,  had  dissolved  partnership,  formed 
no  ground  for  suspecting  that  such  note,  dated  six  months  pre- 
viously, was  about  to  be  diverted  from  the  usefor  which  it  was 
intended,  when  employed  by  a  partner  in  paying  that  firm's 
debts.  The  defendant's  counsel  did  not  disclose  in  his  request, 
what  that  was,  of  which  he  considered  there  was  evidence, 
and  which  was  equivalent  to  a  notice  of  something  which  re- 
lieved the  defendant  from  liability,  because  it  was  sufficient 
to  put  the  plaintiff  on  inquiry  after  that  which  constituted 
such  relief  as  matter  of  law.  Such  request  was  therefore  pro- 
perly refused,  not  only  as  being  too  indefinite,  or  irrelevant, 
but  also  as  not  having  any  basis  in  the  evidence.  There  was 
indeed  no  evidence  of  any  knowledge  by  the  plaintiff  of  a 
misapplication  of  the  note,  or  of  want  of  new  consideration  for 
it,  and  the  plaintiff  was  entitled  to  judgment. 
The  judgment  must  be  affirmed,  with  costs. 


NEW  SERIES  ;  YOL.  I.         .  381 

Ayrault  v.  The  Pacific  Bank. 


AYKAULT  against  THE  PACIFIC  BANK. 

• 
New  York  Superior  Court ;  General  Termr  November,  1863. 

COLLECTING  AGENT.— COSTS. — FORMER  ADJUDICATION. — EVI- 
DENCE. 

An  agent  for  the  collection  of  negotiable  paper  who  fails  to  take  the  neces- 
sary steps  to  charge  the  indorsers  thereof,  is  not  liable  to  the  owner  for 
the  costs  of  an  unsuccessful  suit  by  the  latter  against  the  indorsers,  un- 
less, by  some  misrepresentation  or  other  act,  he  induced  the  bringing  of 
such  suit. 

On  appeal  from  a  judgment,  entered  on  a  verdict  which  includes  a  re- 
covery on  separate  causes  of  action,  one  of  which  is  not  sustained  by  the 
evidence,  if  the  evidence  relied  on  in  its  support  was  not  admissible  in 
support  of  the  other  cause  of  action,  and  yet  was  such  as  may  have  pre- 
judiced the  jury  in  reference  thereto,  the  court  will  not  allow,  absolutely, 
the  respondent  to  retain  his  judgment  on  deducting  the  erroneous  part, 
but  will  allow  the  appellant  a  new  trial  on  terms. 

This  was  an  appeal  from  a  judgment  entered  on  a  verdict 
against  the  defendants,  recovered  by  "Warren  Ayrault,  the 
plaintiff,  on  a  trial  before  Mr.  Justice  MONELL  and  a  jury,  on 
the  10th  of  December,  1862. 

The  contents  of  the  pleadings,  and  the  material  facts,  are 
stated  in -the  opinion  of  the  court. 

7?.  0' Gorman,  for  defendants,  appellants; — Insisted  that 
there  was  no  evidence  of  negligence  on  their  part ;  that  the 
plaintiff  himself  was  negligent ;  and  the  indorsers  had  other 
defences  on  the  merits  which  would  have  exonerated  them, 
even  had  they  been  charged  as  such,  by  due  demand,  and  no- 
tice, &c. ;  and  hence  that  the  plaintiff  had  not  been  dam- 
nified. 


382  ABBOTTS'  PRACTICE  REPORTS. 

Ayrault  v.  The  Pacific  Bank. 

Enos  N~.  Toff,  for  plaintiff,  respondent. — I.  The  general 
liability  of  a  bank,  receiving  paper  for  collection,  for  failure 
to  demand  payment,  and  give  notice  to  the  indorsers,  is  well 
established  by  numerous  decisions  (Smedes  v.  Bank  of  Utica, 
20  Johns.,  and  S.  C.,  in  this  court,  3  Covfa  663  ;  McKinster  v. 
Bank  of  Utica,  9  Wend.,  46 ;  11  Wend.,  473 ;  Allen  v. 
Merchants'  Bank,  22  Wend.,  228 ;  opinion  by  Senator  Ver- 
planck.  See  also  Walker  v.  The  Bank  of  the  State  of  ISTew 
York,  9  JV.  Y.,  [5  Seld.~\,  584 ;  Montgomery  County  Bank  v. 
Albany  City  Bank,  7  N.  T.  [3  Seld.~],  460  ;  Brown  v.  Richard- 
eon,  1  Bosw.,  402  ;  Bedell  v.  Commercial  Mutual  Ins.  Co.,  3 
JBosw.,  147 ;  Rider  v.  Union  India  Rubber  Co.,  4  JBosw.,  169  ; 
Anthony  v.  Smith,  4  Bosw.,  503.) 

II.  The  testimony  on  the  question  of  negligence  on  the 
part  of  the  bank  was  conflicting,  and  the  question  was  very 
properly  submitted  to  the  jury,  and  their  decision  must  con- 
trol (Foot  v.  Wiswall,  14  Johns.,  304;  Purvis  v.  Coleman,  1 
Bosw.,  326). 

III.  So  of  the  question  of  negligence  on  the  plaintiff's  part 

IV.  The  objection  that  plaintiff  suffered  no  damage  is  not 
sustained. 

V.  The  jury,  under  the  circumstances,  had  a  right  to  con- 
sider the  question  as  to  whether  the  costs  of  the  former  action 
should  be  included  in  the  plaintiff's  damages,  and  the  defend 
ant  had  no  right  to  have  it  wholly  withdrawn  from  them.     Tf 
the  defendants  desired  any  more  specific  instructions,  in  sub 
mittirig  the  question  to  the  jury,  they  should  have  asked  for 
them ;  and,  failing  to  do  so,  they  cannot  now  object  to  the  sub- 
mission as  it  was  made. 

If,  however,  the  court  should  be  of  opinion,  that  this  excep- 
tion was  well  taken,  that  will  not  necessitate  the  sending  of  the 
,case  back  to  the  court  below ;  but  the  court  here  can  require 
the  judgment  to  be  reduced  by  the  amount  so  allowed  for 
•costs  and  the  interest  thereon,  or  by  such  part  thereof  as  they 
may  determine. 

VI.  The  court  submitted  all  the  questions  of  fact  to  .the 
jury  in  a  manner  quite  as  favorable  to  the  defendant  as  the 
case  will  warrant;  and  no  ruling  excepted  to  is  unjust  to  the 
defendant. 


NEW   SERIES;  VOL.   I.  383 

Ayrault  v.  The  Pacific  Bank. 

BY  THE  COURT. — ROBERTSON,  J. — Two  causes  of  action  are  set 
out  in  the  complaint  in  this  case. 

First.  A  failure  by  the  defendants  to  make  demand  on  the 
maker,  and  give  notice  of  non-payment  to  the  endorsers  of  two 
promissory  notes  for  four  hundred  dollars  each,  payable  to  the 
order  of  Gr.  Ayrault,  and  deposited  with  them  for  collection. 
This  was  alleged  as  a  breach  of  contract,  or  non-performance  of 
a  duty  to  do  so. 

Second.  An  untrue  representation  by  the  defendants  after 
the  maturity  of  such  notes,  to  the  plaintiffs'  firm,  the  owners 
of  them,  that  the  former  had  properly  caused  demand  of  pay- 
ment to  be  made  of  the  owners,  and  notice  of  non-payment  to  be 
given  to  the  endorsers  thereof,  relying  on  which,  the  plaintiff 
brought  suit  against  the  latter,  and  were  defeated,  and  com- 
pelled to  pay  costs. 

The  complaint  claims  as  damages  the  amount  due  on  such 
notes,  with  interest,  and  the  costs  incurred  in  such  action 
against  the  endorsers.  The  plairftiff's  partner  (G.  Ayrault),  re- 
leased his  interest  in  such  claims  to  the  plaintiff. 

The  complaint  in  this  case  alleges  that  the  plaintiff  and  his 
partner  recovered  judgment  against  the  maker  of  such  notes,  on 
which  execution  was  issued  and  returned  unsatisfied,  and  that 
he  was,  at  the  time  they  became  due,  has  ever  since  been,  and 
now  is  insolvent.  That  the  endorsers  were  perfectly  responsi- 
ble, and  still  are,  and  by  the  failure  of  the  defendants  properly 
to  charge  them,  the  holders  lost  two  certain  sums  of  monejT, 
equal  to  the  whole  amount  due  on  such  notes ;  and  that  the 
makers  had  paid  on  them  after  they  became  due,  about  one 
hundred  aud  fifty-six  dollars.  The  answer  controverted  all  the 
facts  stated  in  the  complaint,  except  a  deposit  of  the  notes. 

No  evidence  was  offered  to  sustain  the  second  cause  of  action, 
to  wit,  that  the  plaintiff  and  his  partners  were  induced  to  com- 
mence an  action  against  the  endorsers  by  any  representations  of 
the  defendants.  The  defendants'  counsel  requested  the  court  to 
instruct  the  jury  that  they  could  only  find  for  the  plaintiff  for 
the  amount  of  the  notes  and  interest.  The  court,  however,  re- 
fused so  to  instruct  them,  and  directed  the  jury  to  add  the  costs 
of  the  former  action  to  such  amount ;  to  which  the  defendants 
excepted. 

The  costs  of  such  former  action  are  not  a  necessary  conse- 
quence of  the  defendant's  neglect,  if  any  existed.  On  the  con- 


384  ABBOTTS'  PRACTICE  REPORTS. 

.     Ayrault  v.  The  Pacific  Bank. 

trary,  if  the  endorsers  were  liable,  the  defendants  were  not  and 
vice  versa.  If  the  defendants  had  guarantied  the  notes  to  be 
collectible,  or  in  any  other  way  actively  induced  the  plaintiffs 
to  bring  the  action,  they  would  have  been  liable  for  the  costs; 
as  it  is,  the  charge  was  erroneous,  and  the  judgment  must  there- 
fore be  reversed. 

In  ordinary  cases  the  court  may  permit  a  party  to  stipulate  to 
reduce  his  damages  in  order  to  save  his  judgment.  In  this  case 
the  error  was  committed  in  regard  to  a  separate  cause  of  action, 
and  the  introduction  of  the  record  of  failure  in  such  former  ac- 
tion against  the  makers,  which  was  only  admissible  to  sustain 
the  claim  for  costs,  and  was  not  evidence,  against  the  defend- 
ants for  any  other  purpose,  may  have  seriously  prejudiced  the 
jury  in  rendering  their  verdict.  For  these  reasons  we  think  a 
new  trial  should  be  had  absolutely,  if  the  defendants  pay  the 
expense  of  the  former  trial ;  the  possibility,  or  probability  of  a 
mistake  by  the  jury,  being  the  strong  reason  for  not  permit 
ting  the  plaintiff  to  stipulate. 

Upon  such  new  trial,  any  too  great  positiveness  in  directing 
the  jury  to  find  a  verdict,  for  the  amount  of  the  notes  in  case 
they  find  against  the  defendants  on  the  question  of  negligence 
may  be  avoided,  as  the  question  of  the  plaintiff's  loss  seems 
to  involve  the  question  of  the  responsibility  of  the  maker,  as 
well  as  that  of  the  endorsers  (Allen  v.  Suydam,  20  Wend., 
321 ;  Hoard  v.  Garner,  10  N.  Y.  [6  Seld.],  261 ;  S.  C.,  3 
Sandf.,  179). 

The  judgment,  therefore,  must  be  that  if  the  defendants 
stipulate  in  five  days  to  pay  the  costs  of  the  former  trial, 
and  in  five  days  thereafter  pay  them,  the  judgment  be  re- 
versed, and  a  new  trial  had,  with  costs  to  abide  the  event. 
But  if  they  do  not  stipulate,  then  that  said  judgment  be  af- 
firmed, in  case  the  plaintiff  stipulates  within  ten  days  to  de- 
duct the  costs  of  the  former  action  from  the  verdict,  or  credit 
them'  on  the  judgment.  But  if  neither  the  defendants  nor 
plaintiff  so  stipulate,  that  the  judgment  be  reversed,  and  a  new 
trial  had,  with  costs  to  abide  the  event.  The  judgment  to  be 
settled  on  two  days'  notice. 


NEW  SERIES  ;  YOL.  I.  385 

. 


Huntington   v.  Douglass. 


HUJSTTINGTOJST  against  DOUGLASS. 

New  York  Superior  Court  ;  General  Term,  November,  1863. 
EVIDENCE. — MEASURE  OF  DAMAGES. — ATTACHMENT. — SALES. 

In  an  action  for  damages  for  the  conversion  of  goods,  which  the  plaintiff 
had  bought  of  the  defendant  and  left  in  his  possession  under  a  special 
afgreement,  where  the  only  proof  of  a  conversion  is  a  demand  and  refusal, 
evidence  is  admissible  that,  at  the  time  of  the  sale,  the  goods  belonged, 
as  the  plaintiff  knew,  not  to  the  defendant,  ^but  to  a  third  person,  who, 
before  the  demand  had  taken  the  goods  away  from  the  defendant  against 
his  will. 

So  is  evidence  that  before  the  demand  they  had  been  seized  by  the  sheriff 
on  an  attachment  against  such  true  owner. 

The  warranty  of  title,  implied  in  a  sale  of  chattels,  does  not  estop  the  seller 
from  setting  up  that  he  was  deprived  of  possession  by  paramount  title 
(Per  ROBERTSON,  J.) 

Appeal  from  a  judgment  entered  on  a  verdict  for  the 
plaintiff. 

The  action  was  brought  by  Calvin  Huntington  against  Charles 
Douglass  and  Thomas  Douglass  to  recover  damages  for  the  con- 
version of  certain  goods,  alleged  in  the  complaint  to  have  been 
"  converted  "  by  the  defendants  to  their  own  use.  The  defend- 
ants, by  their  answer,  denied  the  plaintiff's  ownership  of  the 
property  i  they  also  denied  any  conversion  thereof  by  them. 

The  cause  was  tried  on  the  25th  of  March,  1863,  before  Mr. 
Justice  WHITE,  and  a  jury. 

The  plaintiff  read  in  evidence  an  agreement  as  follows : 

"  Insured,  in  Market  Ins.  Co., 

"  N.  Y.,  June  21st,  1861. 

"  We,  the  undersigned,  have  sold  to  Calvin  Huntington,  and 
"  delivered,  as  per  invoice  rendered  this  date,  four  thousand 
"  five  hundred  and  forty-nine  -fifo  dollars,  tools  and  mdse.,  for 
"  the  sum  of  two  thousand  two  hundred  and  fifty  dollars,  cash 
"  paid  to  Harlow  Huntington,  on  debts  due  him  from  the 
"  Douglass  Manfg  Co. 

N.  S.— YOL.  I.— 25. 


386  ABBOTTS'  PKACTICE  KEPOKTS. 

Huntington  v.  Douglass. 

"  The  aforesaid  goods  are  all  stored  in  the  north-east  side 
".  of  the  upper  basement  of  the  store  now  occupied  by  us,  No. 
"68  Beekman  street,  N.  Y.,  insured  in  the  name  of  Calvin 
"Huntington,  and  held  subject  to  his  order,  any  portion  of 
"  which  he  may  order  sold,  on  consignment,  by  us,  for  which 
"  sales  we  agree  to  pay  monthly,  in  cash,  the  amount  the  goods 
"  cost  him.  The  proceeds  of  the  goods,  over  and  above  the 
"  costs  and  charges  to  Calvin  Huntington,  to  go  to  the  pay- 
"  men t  of  other  liabilities  of  Harlow  Huntington,  for  K.  K. 
"  Douglass.  "  CHAKLES  DOUGLASS, 

"  June  21st,  1861.  "  THOMAS  DOUGLASS." 

Tlie  plaintiff  also  proved  an  invoice,  or  bill  of  parcels  of  the 
goods,  mentioned  in  the  foregoing  agreement,  the  heading  to 
which  was 

"  Mr.  Calvin  Huntington 

Bought  of  Thomas  Douglass." 

Then  followed  the  items  of  goods  sold,  amounting  in  the  aggre- 
gate to  four  thousand  five  hundred  and  forty-nine  dollars  and 
fifty- three  cents. 

The  invoice  bore  date  on  the  same  day  as  the  agreement, 
and  was  receipted  as  follows :  > 

"  Received  payment,  on  the  conditions  specified  in  the  agree- 
ment, THOMAS  DOUGLASS." 

There  was  no  other  delivery  of  the  goods  than  such  as  is 
evidenced  by  the  written  instruments  above  referred  to,  and 
their  being  separate  and  placed  by  themselves  in  a  part  of  the 
defendants'  store.  The"  papers  were  signed  at  the  defendants' 
store,  in  the  basement  of  which  the  goods  had  been  placed. 

Subsequently,  the  goods  were  demanded  by  the  plaintiff",  of 
the  defendant  Charles  Douglass,  who  refused  to  deliver  them. 

The  defendants  offered  to  prove  that  the  goods  in  question 
belonged  to  one  Ames,  and  that  the  plaintiff7  knew  this  at  the 
time  of  the  sale  to  him,  and  that,  before  any  demand  was 
made  of  the  defendants  by  the  plaintiff7,  Ames,  against  the 
directions  of  the  defendants,  took  possession  of  the  property, 
and  removed  it  from  the  defendants'  premises.  This  evidence 
was  excluded  by  the  judge,  and  the  defendants  excepted. 

There  was  conflicting  evidence  as  to  the  delivery  of  the 


NEW  SEKIES ;  YOL.  I.  387 

Huntington  v.  Douglass. 

bill  of  sale  to  the  plaintiff;  the  defendants  testifying,  sub- 
stantially, that  Bottom,  to  whom  the  paper  was  delivered  as 
the  agent  of  the  plaintiff,  was  not  to  deliver  it  until  the  money 
was  paid,  and  that  the  money  had  not  been  paid.  This  was 
contradicted  by  both  Bottom  and  the  plaintiff. 

The  defendants  also  offered  to  prove  that  before  the  plaintiff 
demanded  the  goods,  a  portion  of  them  had  been  taken  and 
removed  by  the  sheriff,  under  an  attachment  against  Ames. 
This  evidence  was  also  excluded  by  the  judge,  and  the  de- 
fendants excepted. 

At  the  close  of  the  evidence,  the  judge  directed  a  verdict 
for  the  plaintiff,  leaving  the  jury  to  assess  the  damages  from 
the  evidence  before  them.  To  this  the  defendants  excepted. 

From  the  judgment  entered  upon  the  verdict,  the  defend- 
ants appealed  to  the  General  Term. 

Thomas  Nelson,  for  defendants,  appellants. — To  sustain  this 
action,  whicli,  in.  its  nature,  is  the  action  of  trover  at  common 
law,  the  plaintiff  must  prove  a  title  to  the  property  either 
general  or  special,  with  the  right  of  its  immediate  possession, 
und  a  conversion  by  the  defendants. 

I.  The  plaintiff  has  no  general  property  in  the  goods.     The 
answer  contains  a  special  denial  of  his  title,  as  well  as  of  a  con- 
version. 

At  most  he  had  but  a  special  property,  as  security  for  such 
money  as  he  had  advanced.  The  goods  were  not  to  be  taken 
by  the  plaintiff  from  the  store,  nor  to  be  consigned  to  or  sold  by 
any  other  party  than  the  defendants.  Aside,  therefore,  from 
the  relation  of  vendor  and  vendee,  the  relation  of  'bailor  and 
bailee  is  created  by  the  express  terms  of  this  contract.  The 
surplus  on  such  sale  was  to  be  applied  for  the  benefit  of  Har- 
low  Huntington,  upon  his  liabilities  for  1ST.  R.  Douglass.  The 
plaintiff  had  no  interest  in  this  surplus.  The  contract  ex- 
pressly provides  for  the  amount  to  be  paid  to  the  plaintiff,  and 
what  shall  be  paid  to,  N".  R.  Douglass  on  debts  for  which  Har- 
low  Huntington  was  liable  ;  thus  by  express  provision,  cutting 
off  all  personal  claim  of  the  plaintiff  on  that  surplus,  or  upon 
the  goods,  after  repayment  to  him  of  the  sum  he  had  advanced. 

II.  The  plaintiff  has  no  special  property  in  the  goods  which 
will  enable  him  to  sustain  this  action. 

(a.)  The  contract  or  bill  of  sale  was  never  delivered ;  the 


388    •  ABBOTTS'  PKACTICE  EEPOKTS. 

Huntington  v.  Douglass. 

conditions  upon  which  its  delivery  to  the  plaintiff  was  to  be 
made  were  never  performed  by  him. 

The  defendants  are  not  estopped  from  proving  those  facts 
by  the  execution  of  that  bill  of  sale,  for  the  object  of  it  is  to 
show  that  the  bill  of  sale  was  never  perfected,  and  never  had 
a  legal  existence  (1  Greenl.  Evid.,  §  284;  Clark  v.  Gifford,  10 
Wend.,  310).  The  testimony  is  also  admissible  on  general 
principles,  as  it  contradicts  no  provision  of  the  writing.  Its 
effect  is  to  show  bow  the  money  was  to  be  applied,  which  in 
the  writing  the  plaintiff  agreed  to  advance.  It  is  the  proof 
of  a  collateral  fact,  unprovided  for  in  the  agreement,  and 
which  is  admissible,  even  in  the  case  where  the  existence  of 
the  contract  is  not  denied  (1  Greenl.  Evid.,  §  89). 

III.  The  fact  that  the  goods  were  taken  from  the  possession 
of  the  defendants  by  Oakes  Ames,  under  a  previous  and  para- 
mount title,  before  the  commencement  of  this  suit,  and  before 
a  demand  was  made,  is  a  bar  to  this  action  (Edson  v.  Weston, 
7  Cow.,  278  ;  1  Smith's  Lead.  Cos.,  480 ;  Shelburg  v.  Scotts- 
field,  Yelv.,  23  ;  Bates  v.  Stauton,  1  Duer,  79  ;  "Wilson  v. 
Anderton,  1  B.  &  Ad.,  450). 

As  a  general  rule,  if  property  is  sold  by  one  having  it  in 
his  possession  at  the  time,  but  to  which  he  has  no  title,  the 
remedy  of  the  purchaser  is  upon  the  implied  warranty  of  title. 
The  action  of  trover  is  not  the  appropriate  remedy  when  the 
vendor  has  no  title  to  the  property  sold,  and  of  which  defect 
the  purchaser  was  informed  at  the  time  of  his  purchase.  In 
such  case,  no  fraud  has  been  committed  upon  him,  and  he  has 
sustained  no  injury  for  which  an  action  in  form  ex  delicti?  can 
be  sustained  (Hawkins  v.  Hoffman,  6  Hill,  588 ;  Whitney  v. 
Slauson,  30  Barb.,  276). 

IY.  There  has  been  no  conversion  of  this  property  by  the 
defendants,  and  for  that  reason,  there  was  error  in  directing 
a  verdict  for  the  plaintiff,  (a.)  The  demand  was  made  after 
the  goods  had  been  taken  from  the  possession  of  the  defend- 
ants, (b.)  It  is  not  pretended  that  the  defendants  have  used  the 
goods,  or  in  any  way  appropriated  any  part  of  them  to  their 
use  and  benefit.  A  conversion  is  a  positive  tortious  act,  and 
it  is  not  sufficient  for  plaintiff  to  prove  mere  negligence  (3 
Phil.  Ei). ;  Cow.,  Hill  &  Edws.  Notes,  539 ;  Andrews  v. 
Shattuck,  32  Barl.,  396 ;  Whitney  v.  Slauson,  30  Barb.,  278  ; 
Policy  0.  Lenox  Iron  Co.,  2  Allen,  184).  Nor  can  plaintiff 


NEW  SERIES;  VOL.   I.  389 

Huntiugton  v.  Douglass. 

sustain  his  judgment  by  saying  that  his  proofs  show  a  cause 
of  action,  if  it  is  other  than,  and  different  from,  that  se*  out 
in  the  complaint  (Moore  v.  VfcKiblxm,  33  Barb.,  246  ;  and  see 
Hawkins  v.  Hoffman,  6  Hill,  5S8). 

V.  There  is  error  in  the  direction  of  the  court,  that  a  ver- 
dict be  rendered  for  the  plaintiff  for  the  whole  amount  and 
interest,  instead  of  merely  for  the  extent  of  the  plaintiff's  lien 
or  claim  upon  the  property.     The  value  of  the  goods  taken  in 
the  attachment  should  have  been  deducted  (Story  ^n  Cont., 
§  742,  a.  See  also  Ogle  v.  Atkinson,  5  Taunt.,  759  ;  Larschman 
v.  Machin,  2  Stark.,  311). 

VI.  The  verdict  is  excessive. 

C.  A.  Nichols,  for  plaintiff,  respondent. — I.  The  testimony 
offered,  to  prove  a  title  in  Oakes  Ames  prior  to  the  conveyance 
to  the  plaintiff  is  wholly  inadmissible,  as  it  would  at  once 
allow  a  bailee  to  dispute  the  title  of  his  bailor,  and  a  vendor 
to  set  up  his  own  fraud  against  the  title  of  his  vendee  (Marvin 
v.  El  wood,  11  Paige,  365  ;  Bates  v.  Staiiton,  1  Daer,  79). 

II.  The  inquiry  as  to  what  conversation   occurred   prior  to 
the  execution  of  the  papers  was  plainly  irrelevant :    the   writ- 
ing was  the  best  and  only  admissible  evidence  of  the  intention. 

III.  The  offer  to   prove  that  the  consideration   was  to  be 
paid  to  the  defendants  could  not  be  entertained,  for  by  the 
agreement  the  plaintiff  was  to  pay  it  to  the   creditors  of  the 
defendants.     The  court  offered  the  defendants  an  opportunity 
to  prove  that  there  was  never  an  absolute  delivery,  to  the 
plaintiff,  of  the  bills  of  sale. 

IV.  The  court  was  correct  in  charging  that  the  recovery  of 
the  plaintiff  must  be  for  the  actual  value  of  the  goods,   and 
was  not  limited  to  the  amount  of  consideration  paid. 

BY  TETE  COURT. — MONELL,  J. — It  was  error  to  exclude  the 
evidence  offered  by  the  defendants,  that  at  the  time  of  the  sale, 
Ames  was  the  owner  of  the  property  in  question ;  and  that 
subsequently,  and  before  the  demand,  he  took  posession  and 
removed  it  from  the  defendants'  premises  and  control. 

The  demand  and  refusal,  upon  which  alone  the  plaintiff 
rested  as  proof  of  conversion,  was  pi'ima  facie  evidence 
merely,  and  could  be  repelled  by  proof  that  a  compliance  with 
the  demand  was  impossible  (Kelsey  v.  Griswold,  6  Barb,  8.  Ct., 


390  ABBOTTS'  PEACTICE  EEPOETS. 

Hunttngton  v.  Douglass. 

436  ;  Hill  v.  Covcll,  1  N.  Y.  [1  Comst.],  522 ;  Whitney  v.  Slaii- 
Bon,  30  Id.,  278  ;  Andrews  v.  Sliattnck,  32  LL,  306). 

The  offer  was  to  show  that,  at  the  date  of  the  bill  of  sale, 
Arnes  was  the  owner  of  the  property;  that  the  plaintiff  knew 
it,  and  that  subsequently,  and  before  the  plaintiff's  demand, 
Ames  took  possession,  and  removed  the  property  "  against  the 
wishes  and  in  spite  of  the  remonstrances  of  the  defendants." 
If  this  evidence  had  been  admitted,  it  would  have  repelled  the 
proof  of  conversion  resting  in  the  refusal  of  tlie  defendants 
to  deliver  the  property  to  the.  plaintiff,  they  not  then  having 
the  possession  or  any  control  over  it. 

Of  the  same  character  was  the  evidence  subsequently  offered 
by  the  defendants, — that  before  the  demand,  a  portion  of  it  had 
been  seized  and  removed  by  the  sheriff  under  an  attachment 
against  Ames.  As  is  well  settled  by  the  cases  above  cited, 
such  proof  would  have  shown  that  the  defendants  could  not 
deliver  the  property,  and  hence  there  was  no  conversion. 

There  must  be  a  new  trial,  with  costs  to  abide  the  event. 

ROBERTSON,  J. — There  was  conflicting  evidence  as  to  the 
absolute  delivery  of  the  inotrument  of  the  21st  of  June,  1801 ; 
also  as  to  the  waiver  of  any  condition  upon  which  it  was 
placed  in  the  hands  of  Bottom.  The  direction  of  the  learned 
judge  to  the  jury  to  find  a  verdict,  for  the  plaintiff  was 
peremptory.  Unless  the  condition  upon  wliich  the  evidence 
tends  to  show  a  conditional  delivery,  wa^  one  which  could  not 
have  been  imposed,  because  contrary  to  the  face  of  the  agree- 
ment, the  charge  was  erroneous. 

The  instrument  on  its  face  purports  to  be  executed  for  a 
certain  sum  "cash  paid  to  Ilarlow  Iluntinirton  on  debts  due 
"  him  from  the  Douglass  Manfg.  Co."  The  defendants  tes- 
tified that  the  depositary  (Bottom)  was  not  to  deliver  it,  until 
that  money  wa's  paid,  and  efforts  wero  made  to  procure  it. 
There  is  nothing  in  the  condition  contrary  to  any  stipulation 
in  the  agreement.  If  it  had  been  absolutely  delivered,  it 
would  have  been  evidence  of  the  payment,  and  the  de'endants 
would  have  been  obliged  to  disprove  it. 

If  the  instrument  had  been  absolutely  delivered,  it  was 
clearly  not  an  absolute  sale  of  the  goods.  The  defendants  by 
it  were  only  to  repay  to  the  plaintiff  what  is  called  the  cost 
of  the  goods,  which  was  money  paid  to  Ilarlow  lluntington 


NEW  SEEIES ;  VOL.  I.  391 

Stevens  v.  Hauser. 

for  debts  of  the  Douglass  Manfg.  Co.  ;  all  the  residue  was  to 
go  to  the  payment  of  other  liabilities  of  Harlow  Huntington 
for  N.  R.  Douglass.  It  probably  was  an  assignment  in  trust," 
to  secure,  first,  the  debt  due  to  the  plaintiff,  and  secondly,  other 
liabilities  of  Harlow  Huntington  for  a  third  person,  and  pos- 
sibly may  have  vested  the  whole  title  in  the  plaintiff. 

I  do  not  understand  that  a  warranty  of  title  on  a  sale  of 
chattels  can  be  so  far  implied  as  to  estop  the  vendor  from  set- 
ting up  the  deprivation  of  possession  by  paramount  title. 
Such  a  warranty  is  a  mere  executory  covenant,  the  breach  of 
which  entitles  the  injured  party  to  damages.  The  law  will 
not  tolerate  the  absurdity  of  both  implying  a  warranty  to 
enable  the  party  to  recover  (Jamages,  and  an  estoppel,  which 
presupposes  that  the  warranty  has  been  complied  with.  If 
sued  for  not  delivering  the  property  as  mere  bailees,  the  de- 
fendants of  course  can  set  up  paramount  title  in  another,  who 
had  a  right  to  take  possession.  The  cases  cited  by  my  brother 
MONELL,  fully  establish  this.  There  was  evidence  offered  to 
show  such  taking  possession,  and  it  was  excluded. 

The  delivery  of  the  goods  to  the  plaintiff  was  entirely  con- 
structive, and  depends  upon  the  delivery  of  the  instrument  of 
June,  1861. 

I  concur  in  thinking  the  judgment  should  be  reversed,  and 
a  new  trial  granted,  with  costs  to  abide  the  event. 

Judgment  reversed. 


STEVENS  against  HAUSER. 
New   York  Superior  Court;   General  Term,  May,  1863. 
LIMITATION  OF  ACTIONS. — BANKRUPTCY.   . 

An  action  by  an  assignee,  in  bankruptcy,  under  the  act  of  Congress  of  1841, 
or  by  his  grantee,  to  recover  the  possession  of  real  property  held  ad- 
versely to  the  bankrupt,  must,  by  the  limitation  prescribed  by  that  act, 
be  brought  within  two  years  after  the  date  of  the  decree  of  bankruptcy  ; 

,  or  if  the  cause  of  action  had  not  then  accrued,  within  two  years  after  it 
did  accrue. 


392  ABBOTTS'  PEACTICE  KEPOKTS. 

Stevens  v.  Hauser. 

Motion  for  judgment  upon  a  verdict  for  the  defendant, 
taken  subject  to  the  opinion  of  the  court  at  general  term. 

The  action  was  brought  by  Bushnell  Stevens  against  John 
Hauser,  to  recover  possession  of  a  lot  of  land  on  the  north  side 
of  Forty-sixth  street,  in  the  city  of  New  York.  The  answer 
was  a  general  denial.  The  trial  was  had  before  Mr.  Justice 
BARBOUR,  and  a  jury,  on  the  25th  of  February,  1863.  The  de- 
fendant objected  to  various  parts  of  the  plaintiff 's  evidence ; 
and  his  objections  being  overruled,  took  exceptions  to  the  de- 
cisions. After  the  plaintiff  rested,  the  counsel  for  the  defend- 
ant moved  to  dismiss  the  complaint,  on  the  ground  that  there 
was  no  order  sufficiently  authorizing  the  assignee  to  sell,  and 
that  the  defendant  was  in  possession  hostile  to  the  rights  of 
the  plaintiff  during  the  two  years  allowed  him  to  set  up  his 
right  of  title,  and  he  did  not  do  it,  so  that  this  action  was  now 
too  late. 

By  consent  of  counsel,  judgment  was  taken  for  defendant, 
subject  to  the  opinion  of  the  court  at  general  term. 

John  Townshend)  for  plaintiff. — I.  The  question  is  res  judi- 
cata  in  this  court.  On  a  precisely  similar  state  of  facts  this 
court  ordered  judgment  for  the  plaintiff  (Stevens  v.  Palmer, 
Nov.,  1862.*) 

II.  The  plaintiff  was  not  barred  by  lapse  of  time.  The  two 
years'  limitation  prescribed  by  section  8  of  the  United  States 
Bankrupt  Law  did  not  appty.  This  was  the  express  point  de- 
cided 20th  May,  1862,  by  Judge  NELSON  in  the  United  States 
Circuit  Court,  in  the  matter  of  Conant,  a  bankrupt.  The 
language  of  Judge  NELSON'S  decision  is  as  follows  : 

"  It  is  obvious,  from  a  careful  perusal  of  this  section,  that 
the  limitation  only  applies  to  suits  growing  out  of  disputes,  in 
respect  to  property  and  rights  of  property  of  the  bankrupt, 
which  came  to  the  hands  of  the  assignee,  and  to  which  adverse 
claims  existed.while  in  the  hands  of  the  bankrupt,  and  before 
the  assignment.  These  disputes  'of  claims  affected  the  assets 
of  the  bankrupt,  and  an  adjustment  of  them,  either  by  com- 
promise or  suit,  was  indispensible  to  a  settlement  and  distri- 
bution of  the  settlement  among  the  creditors. 

*  Since  reported  in  10  Bosw.,  60. 


NEW  SERIES  ;  VOL.   I.  893 

Stevens  v.  Hauser. 

"  A  short  bar  to  suits  by  limitation,  either  by  the  assignee 
or  the  adverse  claimant,  furnished  a  tit  and  appropriate  remedy 
against  delay,  where  compromise  was  impracticable.  The 
last  clause  of  the  section  seems  conclusive  in  favor  of  this  con- 
struction. The  time  from  which  the  two  years'  limitation  be- 
gins to  run  is  the  date  of  the  declaration  and  decree  of  bank- 
ruptcy ;  or,  if  the  cause  of  action  had  not  then  accrued,  two 
years  after  it  had.  The  first  clause  of  the  limitation  could 
only  apply  to  adverse  claims  existing  before  the  decree,  and 
the  second  applies  to  the  same,  but  provides  for  the  case 
where  the  right  to  institute  the  suit  did  not  accrue  till  after 
the  date  of  the  decree." 

"The  limitation  has  no  reference  to  suits  growing  out  of 
the  dealings  of  the  assignee  with  the  estate  after  it  came  into 
his  hands.  These  were  matters  for  which  he  might  bo  made 
personally  responsible,  and  no  reason  existed  for  changing  the 
general  period  of  limitation,  any  more  than  in  the  case  of  any 
other  trustee  dealing  with  trust  property." 

"  There  certainly  could  be  no  reason  for  applying  the  short- 
term  in  favor  of  persons  dealing  with  the  assignee,  in  respect 
to  the  estate  of  the  bankrupt,  after  it  came  into  his  hands,  and 
the  statute  makes  the  limitation  mutual. 

"  We  are  of  opinion  that  the  limitation  in  the  eighth  section 
of  the  statute  does  not  apply  to  the  case  presented,  and  shall 
direct  it  to  be  so  certified  to  the  district  court." 

An  additional  reason  for  holding  the  limitation  not  to  apply 
is,  that  the  statute  having  been  repealed  in  March,  1843,  can- 
not apply  to  causes  of  action  arising  after  that  date. 

III.  If  the  statute  bar  applied,  the  defendant  was  not  in  a 
position  to  avail  himself  of  it ;  it  was  not  set  up  in  his  answer, 
and  was,  therefore,  inadmissible  on  the  trial  (Code  of  Proced- 
ure, §§  74,  149). 

George  W.  Stevens,  for  defendants ; — Insisted  that  the  ex- 
ceptions to  the  admission  of  evidence  were  well  taken,  and 
also  that  more  than  two  years  having  elapsed  since  the  decree 
of  bankruptcy  was  made,  and  since  the  cause  of  action  accrued, 
this  suit  could  not  be  maintained  (Bankrupt  Act,  §  8  ;  Paul- 
ding  v.  Lee,  20  Ala.,  753  ;  Cleveland  v.  Boerum,  27  13arb., 
252 ;  S.  C.,  24  N.  T.,  613).  And  that  the  possession  of  the 
defendant  was  hostile  to  the  title  of  Tallmadge  and  Waddell 
(Sherry  v.  Frecking,  4  Duer,  452). 


394  ABBOTTS'  PRACTICE  REPORTS. 

Stevens  v.  Hauser. 

BY  THE  COURT. — MONCKIEF,  J — It  appears  by  the  case  pre- 
sented upon  the  hearing  of  the  motion  for  judgment  upon  the 
verdict,  that  upon  the  trial  of  the  issues  of  fact  by  a  jury,  thia 
case  presented  only  questions  of  law,  whereupon  the  presiding 
justice  directed  a  verdict  subject  to  the  opinion  of  the  court 
at  general  term,  and  a  verdict  pursuant  to  that  direction  being 
rendered  for  the  defendant,  the  justice  ordered  that  applica- 
tion for  judgment  on  said  verdict  be  made  at.  the  general 
term.  ]n  such  a  case  the.  application  for  judgment  must 
be  made  at  the  general  term  (Code  of  Procedure,  §  265).  A 
verdict  having  at  the  trial  been  directed  in  favor  of  the  de- 
fendant, thij  rulings  thereupon  against  him  cannot  be  con- 
sidered upon  this  motion.  "  The  rule  is  to  examine  the  de- 
cisions made  by  the  (circuit)  judge  against  the  party  who  lias 
lost  the  verdict,  and  to  grant  or  refuse  a  new  trial,  according 
as  we  find  them  erroneous  or  otherwise  (Elsy  v.  Metcalf,  1 
Den.,  323 ;  Rogers  v.  Murray,  3  Bosw.,  357). 

It  appears  that  on  Saturday  the  10th  day  of  December, 
1842,  one  Daniel  JB.  Tallmadge  was,  in  the  district  court  of 
the  United  States  for  the  Southern  District  of  New  York, 
"declared  and  decreed  a  bankrupt  pursuant  to  the  act  of  Con- 
gress entitled,  "  An  act  to  establish  a  uniform  system  of 
bankruptcy  throughout  the  United  States,  passed  August  19th, 
1841.  And  it  was  furthermore,  u  ordered  by  the  court  that  the 
clerk  certify  and  deliver  this  decree  to  William  C.  H.  Waddell, 
the  official  or  general  assignee  in  bankruptcy,  appointed  a,nd 
designated  under  the  rules  and  regulations  of  the  court."  The 
order  of  appointment  of  Waddell  above  referred  to,  under 
date  4th  January,  1842,  was  also  read  in  evidence. 

The  present  action  is  an  action  of  ejectment,  brought  by  the 
plaintiff,  claiming  title  to  one  of  several  lots  of  land,  being 
part  of  what  is  known  as  the  Hermitage  Tract,  whereof  said  Tall- 
inadge  was  possessed,  or  in  which  he  had  some  interest  or  claim 
at  the  time  of  his  being  declared  a  bankrupt,  as  aforesaid. 

"Whatever  estate,  rights  or  interests  were  possessed  or  claimed 
by  the  bankrupt  (Tallmadge),  passed  to  and  became  vested  in 
the  general  assignee  by  virtue  of  the  decree  declaring  him  a 
bankrupt,  &c.  (Ryerss  v.  Fawrell,  9  Harb.,  fi!5).  The  convey- 
ance under  which  the  plaintiff  makes  his  claim  so  asserts — u  I 
*  *  *  do  hereby  grant  unto  the  said  Bushnell  Stevens,  his 
lieirs  and  assigns  forever,  all  the  right,  title  and  interest  which 


1STEW  SERIES;  VOL.  I.  395 

Stevens  v.  Hauser. 

the  said  bankrupt  had,  and  which  by  virtue  of  the  decrees  and 
orders  above  recited,  and  of  the  act  entitled  •'  An  act  to  estab- 
lish a  uniform  system  of  bankruptcy  throughout  the  United 
States,"  as  aforesaid  became  vested  in  me,  and  which  I  'have  a 
right  to  convey  of,  in  and  to  all,  &c.  *  *  It  did  not  appear 
that  Mr.  Waddell.  the  general  assignee  in  bankruptcy,  had  ever 
asserted  a  title  or  made  or  pretended  to  have  any  title,  or  claim 
of  title,  or  interest  in  and  to  the  premises  in  question,  unless  the 
conveyance  aforesaid,  some  nineteen  years  after  the  decree  of 
bankruptcy,  can  be  treated  as  such  claim  of  title. 

There  was  proof  that  the  defendant  had  been  in  possession 
16  or  17  years. 

Judge  NELSON,  in  his  opinion  in  the  matter  of  Conant  (MSS., 
May  20th,  1862)  says,  *  *  "  A  short  bar  to  suits  by  limita- 
tion, either  by  the  assignee  or  the  adverse  claimant,  furnished 
a  fit  and  appropriate  remedy  against  delay,  where  compromise 
was  impracticable.  The  last  clause  of  the  section  seems  con- 
clusive, in  favor  of  this  construction.  The  time  from  tvlrich  the 
two  years'  limitation  begins  to  run.  is  t/ie  date  of  the  declar- 
ation and  decree  of  bankruptcy,  or  if  the  cause  of  action  had 
not  then  accrued,  two  years  after  it  had."  *  *  The  remaining 
portion  of  the  opinion  not  applicable  to  the  present  case  (as 
read  from  the  extract  upon  the  plaintiff's  points),  seems  to  jne 
to  indicate  that  the  question  to  be  determined  in  that  case  was 
whether  a  claim  arising  out  of  dealings  made  with  the  assignee 
after  the  acquisition  of  title,  possession,  &c.,  was  within  the 
limitation,  and  it  was  held  it  was  not  barred. 

In  the  present  case,  the  cause  of  action,  if  any,  was  perfect  at 
the  date  of  the  decree,  made  in  1842 ;  if  at  that  time  Mr.  Wad- 
dell  had  gone  into  possession  of  this  lot  claiming  titl<\  and  the  de- 
fendant or  some  other  adverse  claimant  desii  ed  to  dispute  the 
title  of  the  bankrupt  or  his  assignee,  by  the  plain. terms  of  the 
act,  and  following  this  decision  in  its  interpretation,  the  action 
must  have  been  brought  within  two  years,  and  if  not  so  brought 
is  forever  barred. 

The  decision  cited  by  the  counsel  for  the  defendant,  while 
entitled  to  great  weight  as  expressing  the  opinion  entertained 
by  four  of  the  most  eminent  jurists  in  this  State,  was  not  the 
opinion  of  the  court,  and  cannot  therefore  be  s-aid  to  be  decisive 
on  the  point  (Cleveland  v.  Boerum,  24-  N.  F!,  613  . 

It  was  not  shown  that  the  bankrupt  was  in  possession  of  the 


396  ABBOTTS'  PKACTICE  EEPOETS. 

Star  Steamship  Company  v.  Mitchell. 

premises  in  question  at  the  time  of  the  making  of  the  declar- 
ation and  decree  of  bankruptcy,  or  indeed  that  he  ever  was 
in  possession  ;  there  was  no  proof  of  possession  by  the  assignee, 
nor  of  a  claim  or  pretence  of  a  right,  of  possession  ;  it  would 
seem  to  furnish  some  light  upon  the  interest  which  the  assignee 
presumed  the  bankrupt  had  at  the  time  of  the  making  of  the 
decree,  that  he  states  in  his  application  for  leave  to  sell  and 
dispose  of  the  "interest  which  the  said  bankrupt  had,  and 
which  became  vested  in  the  assignee  by  the  decree  aforesaid," 
that  it  can  be  sold  only  "  for  a  nominal  consideration,  and  the 
costs  of  the  assignee  and  his  counsel  therein,  and  the  title 
hereby  sought  b:-iny  of  no  pecuniary  value  to  the  estate." 

Under  such  circumstances  we  think  it  plain  that  the  plaintiff 
in  this  action  cannot  recover.  The  complaint  was  therefore 
properly  dismissed,  and  judgment  should  be  entered  upon  the 
verdict  for  the  defendant  with  costs. 


STAR  STEAMSHIP  COMPANY  against  MITCHELL. 

New  York  Common  Pleas  j  General  Term,  April,  1865. 

PLEADING. — ACTION  OF  DECEIT. 

A  pleading  intended  to  set  up  "deceit"  should  contain  an  avorment,  in  sub- 
stance, that  the  representations  complained  of  were  "falsely,"  "fraudu- 
lently," or  "  deceitfully  "  made,  or  that  tin  defendant  relied  on,  or  was 
deceived  by  them.  The  statement  that  the  person  making  them  knew 
otherwise,  and  made  the  representations  "to  induce  the  party  to  purchase," 
is  not  sufficient. 

A  defect  in  this  respect  cannot  be  cured  by  amendment  after  ^verdict. 

The  plaintiffs,  in  February.  1858,  brought  this  action  against 
the  defendant  for  four  thousand  dollars,  being  the  balance  of 
the  price  of  the  steamship  "  Star  of  the  South,"  which,  in  Au- 
gust, 1857,  had  been  sold  by  the  plaintiff's  to  the  defendant  for 
the  sum  of  thirty-two  thousand  live  hundred  dollars. 

The  only  defence  material  to  the  decision,  was  an  averment 


NEW  SERIES;  VOL.  I.  397 

Star  Steamship  Company  v.  Mitchell. 

that  three  of  the  owners  of  the  vessel,  in  order  to  induce  the 
defendant  to  purchase  it,  "  represented  and  stated  to  the  de- 
fendant that  the  engine,  machinery  and  propeller  of  said  vessel 
was  in  perfect  order,  and  all  complete ;  that  everything  was 
complete,  except  that  the  vessel  wanted  new  boilers ;  and  on 
such  representations,  and  trusting  to  such  statements,  the  de- 
fendant purchased  the  vessel.  *  *  *  That  on  pumping  out 
some  water  that  was  in  the  vessel,  the  defendant  discovered 
that  the  engine  was  not  all  complete ;  that  the  bed-plate  was 
cracked,  and  the  machinery  otherwise  badly  damaged,  and  the 
propeller  out  of  order,  and  injured.  That  such  injuries  were 
known  to  the  persons  who  had  possession  of  and  owned  such 

vessel,  and  were  concealed  from  the  defendant,  and  that  to  re- 

Q  ' 

pair  such  injury  and  damage  to  the  engine  and  propeller,  and 
make  them  complete,  the  defendant  expended  the  sum  of  four- 
teen thousand  dollars." 

There  was  evidence  given  to  show  that  the  ship  had  been 
built  in  1853  or  1854,  at  a  cost  of  one  hundred  and  twenty 
thousand  dollars,  and,  at  the  time  of  her  sale  -to  the  defendant, 
was  worth  several  thousand  dollars  more  than  the  price  at  which 
she  was  sold.  Upon  the  trial  it  was  alleged  that  Captain  Marks 
had,  by  hi*  representations,  prevented  an  examination  of  the 
bed-plate,  etc.  It  was  conceded  that  the  defendant's-  agent  had 
"ully  examined  the  hull,  and  evidence  was  given  to  show  that 
they  had  abundant  opportunity  to  examine  all  the  machinery, 
except  the  bed-plate,  etc.,  which,  it  was  alleged,  was  under  water. 
The  evidence  of  tlue  plaintiffs  showed  that  the  bed-plate  could 
ilso  be  seen. 

The  court  charged  as  follows  :  + 

That  a  buyer  is  bound  to  examine  what  he  is  about  to  pur- 
chase whenever  opportunities  for  examination  are  offered  him, 
but  there  are  exceptions  to  this  rule,  as  where  a  party  takes  a 
warranty  or  purchase  by  sample ;  there  is  still  another  exception, 
as,  if  the  seller  be  guilty  of  fraud  in  effecting  the  sale,  such  sale 
may  be  avoided.  The  defendant  in  this  case  does  not  set  up  a 
warranty ;  the  defence  on  which  he  relies  is  that  of  fraud.  The 
steamer  and  her  machinery  might  have  been  examined,  and  it 
was  the  duty  of  the  purchaser  to  examine  her,  and  procure  the 
lid  of  competent  persons  for  that  purpose,  or  to  obtain  a  special 
warranty ;  but  if  the  purchaser,  or  his  assistants,  were  prevented 
by  artifice,  or  by  any  representation  on  the  part  of  the  plaintiff's 


398  ABBOTTS'  PRACTICE  REPORTS. 

Star  Steamship  Company  v.  Mitchell. 

agents  from  making  a  complete  examination,  the  purchaser 
would  be  entitled  to  return  the  vessel,  and  avoid  the  sale,  or,  as 
he  claims  in  this  action,  to  retain  the  vessel  and  deduct  enough 
from  the  purchase  money  to  compensate  himself  for  any  dam- 
ages he  may  have  sustained. 

In  this  case  the  first  representation  relied  on  by  the  defend- 
ant, is  that  contained  in  the  schedule. 

"  Engine  department  all  complete." 

The  jury  are  to  pass  upon  the  meaning  of  the  word  complete, 
as  applied  to  the  engine  department  of  a  steamer  in  its  ordinary 
and  common  signification.  In  that  view  it  means  full — indicates 
that  there  is  nothing  deficient ;  that  all  the  parts  are  there  ;  not 
the  condition  of  each  particular  part,  or  as  to  their  being  new 
or  old,  or  the  degree  in  which  they  may  be  worn,  but  that  they 
are  all  there  like  the  different  parts  of  a  watch.  This  is  my  un- 
derstanding of  that  term,  but  the  jury  are  at  liberty  to  give  it 
their  own  construction. 

But  the  defendant  did  not  rely  upon  this  representation  ;  he 
sent  his  brother  with  competent  assistants  to  examine  the  vessel 
and  her  machinery.  Every  part  of  the  machinery  was  exam- 
ined except  the  portion  under  water,  and  it  is  claimed  that  they 
were  prevented  from  examining  that  part  of  the  machinery  by 
the  statement  of  Captain  Marks,  that  it  was -in  perfect  condition, 
or  all  right,  etc.  The  whole  inquiry  would,  therefore,  seem  to 
be  confined  to  the  part  of  the  machinery  under  water,  and  the 
representations  in  respect  to  it,  and  if  the  jury  find  that  any  arti- 
fice was  resorted  to  .on  the  part  of  plaintiffs'  agents,  either  by  al- 
lowing the  water  to  remain  in  the  vessel  and  cover  the  bed- 
platdl,  or  otherwise,  or  if  they  should  find  that  the  statements  of 
Captain  Marks  were  made  for  the  purpose  of  deceiving  and 
misleading  the  defendant  and  his  agents  as  to  the  real  condition 
of  the  machinery  under  water,  or  if  anything  were  said  -by 
Marks,  Stanton,  or  by  any  other  person  to  deceive  or  mislead 
the  defendant,  he  would  be  entitled  to  reduce  the  amount  of  the 
claim  against  him  to  the  extent  of  the  repairs  and  damages  to 
that  part  of  the  machinery  which  he  was  prevented  from  exam- 
ining, but  the  jury  must  be  satisfied  that  the  representations 
were  false,  and  that  they  had  the  effect  of  misleading  the  de- 
fendants. 

But  although  Captain  Marks  made  statements  which  were  un- 
true, yet  if  the  jury  find  that  the  vessel  and  her  machinery  were 


NEW  SERIES  ;  VOL.  I.  399 

Star  Stearcship  Company  v.  Mitchell. 

— __^ , . , 1 ^ 

worth  all  that  was  agreed  to  be  paid  for  the  same  by  the  defend- 
ant, in  other  words,  the  defendant  received  the  full  value  of  the 
money,  and  did  not  sustain  any  damage  by  reason  of  such  mis- 
statements,  they,  in  this  action,  become  of  no  importance ;  they 
would  have  entitled  the  defendant  to  rescind  the  contract,  if  he 
had  seen  fit,  but,  as  he  elected  to  retain  the  vessel,  he  is  only  en- 
titled to  such  deduction  from  the  price  as  will  equal  the  damage 
he  sustained,  and  in  this  aspect  of  the  case  the  jury  should  take 
into  consideration  the  testimony  as  to  the  value  of  the  steamer 
at  the  time  of  the  sale  to  the  defendant. 

That  these  were  all  questions  for  the  consideration  of  the 
jury.  If  they  found  that  the  defendant  was  defrauded,  they 
would  make  such  a  deduction  from  the  plaintiffs'  recovery  as 
would  compensate  him  for  the  condition  of  and  the  repairs  to 
the  machinery  which  was  under  water,  and  the  jury  must  deter- 
mine the  amount  to  be  allowed  to  defendant  in  that  event. 

The  defendant's  counsel  excepted  to  that  portion  of  the  charge 
contained  in  the  last  two  paragraphs. 

The  jury  found  a  verdict  for  the  plaintiff  for  three  thousand 
one  hundred  and  twenty-three  dollars  and  fifty-seven  cents,  be- 
ing the  deduction  of  one  thousand  three  hundred  and  thirty-five 
dollars  and  seventy-five  cents,  from  the  amount  claimed  by  the 
plaintiff. 

From  the  judgment  entered  upon  the  verdict,  the  defendants 
appealed. 

Beebe,  Dean  &  Donohoe,  for  appellants. — I.  The  court  erred 
in  the  statement  of  the  rule  of  damages.  The  correct  rule  is, 
that  the  damage  is  the  difference  between  the  value,  if  the  ship 
was  as  represented  at  the  time  of 'the  sale,  and.  the  actual  value 
at  that  time,  with  the  defects  proved  (Voorhees  v.  Earle,  2  Hill, 
288 ;  Gary  v.  Gruman,  4  Hill,  625 ;  Muller  v.  Eno,5 14  &  T.  [4 
Kern  ],  597).  That  is  the  rule  of  damages  in  case  of  sale  with 
warranty,  and  there  is  no  reason  for  any  different  rule  when  the 
purchaser  has  been  induced  to  enter  into  a  contract  by  the  known 
false  representations  of  a  party  as  to  the  condition  of  the  article 
purchased.  The  law  gives  to  the  person  who  has  been  induced  ' 
to  purchase  by  false  representations,  the  right  to  rescind ;  but 
where,  as  in  this  case,  he  could  not  rescind,  it  does  not  offer,  as  a 
premium  to  fraud,  the  certainty  of  no  loss,  and  the  chance  of 
keeping  more  than  the  value,  nor  does  it  prevent  a  purchaser 


400  ABBOTTS'  PEACTICE  EEPOETS. 

Star  Steamship  Company  v.  Mitchell. 

from  a  fraudulent  vendor  from  making  a  profit.  The  action  is 
on  a  contract ;  the  defence  is  a  breach  of  that  portion  of  the  con- 
tract which  represented  the  quality  or  condition  of  the  article 
purchased.  It  is  fundamental,  that  "  the  contract  itself  furnishes 
the  measure  of  damages  "  (Sedgwick  on  Damages,  200 ;  2  Par- 
sons on  Contracts,  44).  If  the  damage  is  limited  to  the  expense 
of  repairing,  he  loses  the  whole  use  of  his  vessel  during  the  time, 
and  the  interest  on  the  money  paid  (Driggs  v.  Dwight,  17 
Wend.,  71). 

II.  The  counter-claim  in  this  case  is  on  a  warranty,  if  an  ac- 
tion on  the  case  had  been  brought  on  it — averring  the  warranty 
and  the  scienter — the  rule  of  damages  -would  have  been  the 
same  as  if  on  the  warranty  in  assumpsit  (Sedgwick  on  Damages, 
206).     (a)  No  particular  form  of  words  is  necessary  to  constitute 
a  warranty ;  any  declaration  made  by  the  vendor  during  the  ne- 
gotiation for  the  sale  on  which  the  purchaser  relies,  in  reference 
to  the  condition  of  the  article  sold,  is  a  warranty  (1  Cow.  Trea., 
313  ;  1  Parsons  on  Contracts,  462).     (b)  Parties  often  elect  as  to 
whether  they  will  bring  case  or  assumpsit ;  but  if  the  action  is 
on  a  contract,  though  in  form  for  a  tort,  the  rule  of  damages  is 
as  in  cases  for  breach  of  contract  (Campbell  v.  Perkins,  8  IV.  T~. 
[4  Stld  ],  430  ;  Trull  v.  Granger,  8  IT.  T.  [4  Seld.~],  115). 

III.  The  rulings  of  the  court  on  the  admissibility  of  evidence 
were  founded  on  the  same  theory  as  to  the  rule'  of  damages  as 
the  charge,  and  for  this  reason  erroneous. 

Martin  <&  Smith,  for  respondents. — I.  There  was  no  error  in 
any  ruling  upon  the  admission  or  rejection  of  evidence.  It  was 
alleged  that  the  defendant  was  deceived  in  respect  to  the  state 
of  the  machinery.  In  answer,  it  was  certainly  competent  to 
prove  that  he  knew,  or  must  have  known,  that  it  was  in  a  very 
bad  state.  The  effect  of  the  employment  of  the  ship,  all  of 
which  was  known  to  the  defendant,  was  competent  for  this  pur- 
pose. 

IE.  The  charge  correctly  stated  that  the  defendant  did  not  set 
up  any  warranty,  but  relied  upon  the  defence  of  fraud,  and  left 
it  to  the  jury  to  construe  the  phrase,  "  Engine  department  all 
complete,"  to  which  there  was  no  objection.  It  then  told  the 
jury,  in  substance,  that  if  Captain  Marks'  statements  were  not 
true,  as  to  the  state  of  the  machinery,  that  circumstance  was  not 
material,  if  the  defendant  sustained  no  damages  by  reason  there- 


NEW  SERIES  ;   VOL.  I.  401 

Star  Steamship  Company  v.  Mitchell. 

of,  but  that  even  then  the  defendant  might  have  rescinded  the 
contract.  The  exceptions  to  the  charge  cover  essentially  the 
same  ground.  The  point  is  the  same,  whether  the  party  com- 
plaining is  plaintiff  or  defendant.  A  party  cannot  recoup  unless 
he  has  a  cause  of  action  upon  which  he  may  maintain  an  action 
as  plaintiff.  If  the  plaintiff  were  suing,  his  action  would  be 
"  deceit."  In  such  an  action  it  is  perfectly  well  settled  that  two 
things  must  concur,  or  no  action  will  lie,  viz. :  fraud  and  damage. 
Neither,  without  the  other  will  avail.  It  is  no  answer  to  this  to 
say  that  a  jury  may,  in  a  proper  case,  give  a  sum  in  addition  to 
the  actual  damage,  as  smart  money.  So  they  may — but  they 
cannot  do  this  until,  first,  the  cause  of  action  is  made  out — until 
both  the  fraud  and  the  damage  are  proved.  The  charge,  in 
effect,  says,  that  deceit  will  not  lie  unless  the  party  complaining 
has  been  injured  thereby,  and  the  charge  was  right.  And  if 
deceit  will  not  lie,  the  same  facts  will  not  make  a  good  recoupe- 
ment  (Per  BDLLER,  J.,  Pasley  v.  Freeman,  3  T.  R.,  51-56 ;  also, 
pp.  61,  62,  64;  Benton  v.  Pratt,  2  Wend.,  389 ;  White  v.  Merritt, 
7  N~.  Y.  [3  8eld.~\,  352-356,  citing  the  cases  above  from  2d 
Wend. ;  Upton  v.  Vail,  6  J.  E.,  181 ;  Addington  v.  Allen,  11 
Wend.,  374). 

III.  There  is  another  technical,  but  none  the  less  conclusive 
answer  to  these  exceptions.  It  is,  that  the  answer  stated  no  case 
under  which  the  defendant  was  legally  entitled  to  givfe  proof 
of  false  representations.  To  make  the  answer  good  for  this  pur- 
pose, the  defendant  must  aver  that  the  representation  was  made 
with  intent  to  deceive  and  defraud.  It  was  so  held  in  Adding- 
ton v.  Allen,  even  after  verdict  (11  Wend.,  374).  The  prece- 
dents contain  the  words  "  falsely,  fraudulently  and  deceitfully 
represented,"  and  these  words  are  essential  (2  Chittifs  Plead- 
ings, 703,  704 ;  Young  v.  Covel,  8  J.  12.,  23 ;  Cropsey  v.  Kobin- 
son,  5  Leg.  Obs.,  20;  1  J3db.  Ac.,  tit.  Actions  on  the  Case,  p. 
125,  f ).  Before  the  Code,  the  point  would  have  been  too  plain 
for  argument.  Now  there  is  only  room  for  discussion  upon  the 
question  whether  §  173  of  the  Code  is  applicable.  And  upon 
that  it  is  clear,  that  no  power  exists  to  amend  a  pleading  after 
judgment,  so  as  to  make  the  judgment  erroneous.  To  sustain  a 
judgment,  the  court  will  "  conform  a  pleading  to  the  facts 
proved,"  but  not  to  overthrow  it  (Williams  v.  Hall,  6  Bosw., 
674,  678  ;  Gasper  v.  Adams,  24  Barb.,  287 ;  Englis  v.  Turnis,  3 
Abb.  Pt\,  82  ;  Brazil  v.  Isham,  2  N.  Y.  [2  Kern^,  17 ;  Field  v. 
N.  S.— YOL.  I.— 26. 


402  ABBOTTS'  PKACTICE  REPORTS. 

Star  Steamship  Company  v.  Mitchell. 

The  Mayor  of  New  York,  6  Ji.  T.  [2  Sdd.],  179, 189;  Brown 
v.  Colie,  1  E.  D.  Smith,  226,  270). 

IV.  The  court,  in  substance,  told  the  jury,  that  if  the  repre- 
sentation did  not  influence  the  defendant,  he  was  not  entitled  to 
recover  upon  it ;  and  so  is  the  reason  of  the  thing,  and  so  are 
the  authorities  (Bronson  v.  Wiman,  8  N.  Y.  [4  Sdd.~\,  182, 186, 
188,  9).  The  point  before  made,  is  equally  applicable  to  this 
exception,  viz. :  no  proof  of  false  representations  was  admissible 
under  the  answer. 

CAEDOZO,  J. — That  a  declaration  in  an  action  for  deceit  must, 
under  the  common  law  system  of  pleading,  contain  an  allegation 
that  the  representation  was  falsely  or  fraudulently  made,  is  too 
well-settled  to  admit  of  cavil  (see  2  Chitty  PI.,  703,  704  ;  Evert- 
son  v.  Miles,  6  J.  R.,  138  ;  Young  v.  Covel,  8  J.  -#.,  23  ;  Cropsey 
v.  Robinson,  5  Leg.  Obs.,  20 ;  1  Bac.  Ab.,  Tit.  Actions  on  the 
Case,  125,  F. ;  Allen  v.  Addington,  11  Wend.,  374). 

In  the  last  mentioned  case  it  was  held  that,  even  after  verdict, 
a  declaration  in  such  an  action  would  be  fatally  defective  if  it 
did  not  contain  that  averment. 

In  Zabriskie  v.  Smith  (13  N.  Y.  [3  JTern.~],  322),  DENIO,  J., 
adverting  to  the  rule  which  I  have  mentioned,  and  commenting 
upon  Allen  v.  Addington,  said :  "  Under  our  present  system  ol 
pleading,  I  conceive  that  a  complaint  should  contain  the  sub- 
Btance  of  a  declaration  under  the  former  system." 

He  holds  that,  although  the  concise  averments  given  in  the 
form-books  would  be  better  pleading,  and  more  in  accordance  with 
the  spirit  of  the  Code,  yet,  if  the  language  employed,  though  in- 
artificial by  reasonable  intendrnent.  makes  out  an  allegation  of 
bad  faith  and  evil  intention,  it  will  be  sufficient.  Tested  by  this 
rule,  I  think  the  answer  of  the  defendant  is  fatally  defective ; 
and  that,  under  it,  the  defendant  could  not  claim  to  give  proof 
of  false  representations.  . 

If  this  be  so,  it  will  be  unnecessary  to  examine  the  other 
questions  presented  on  the  argument. 

The  answer  in  this  case,  which,  of  course,  must  contain  all 
that  would  be  necessary  to  make  a  perfect  complaint  for  deceit, 
does  not  contain  any  averment  that  the  representation  or  the 
concealment  of  fact  charged  was  with  any  false  or  fraudulent  in- 
tent, nor  any  language  from  which  such  an  intent  can  fairly  be 
inferred.  In  Zabriskie  v.  Smith,  the  averment  was  that  the 


M         NEW  SEEIES ;  VOL.  I.  403 

Star  Steamship  Company  v.  Mitchill. 

representation  made  by  the  defendant,  was  "  false  and  deceit- 
ful," and  that  the  defendant  knew  the  plaintiffs  would  rely  on  it, 
and  that  they  did  in  fact  rely  upon  it,  and  would  not  have 
trusted  the  debtor,  had  not  the  representation  been  made.  Tak- 
ing all  the  averments  together,  that  complaint  was  held  to  be 
good.  But  the  answer  in  this  case  is  very  different.  It  avers 
that  the  injuries  complained  of  were  known  to  the  parties  hav- 
ing possession  of  the  vessel,  and  were  concealed  from  the  defen- 
dant. But  whether  such  concealment  was  fraudulent  or  honest, 
as  it  may  very  well  have  been,  is  not  averred.  Nor  does  the 
answer  say  that  the  representations  alleged  were  either  "  falsely," 
"  fraudulently,"  or  "  deceitfully  "  made,  or  that  the  defendant 
either  relied  upon  or  was  deceived  by  them.  It  only  charges 
that  the  representations  were  made  "  to  induce  "  the  defendant  to 
purchase,  but  it  is  not  averred  that  they  had  that  effect,  or  that 
the  defendant  would  not  have  bought,  had  the  representations 
not  been  made,  or  had  no  concealment  been  had ;  nor,  indeed, 
but  that,  notwithstanding  the  representations  and  the  conceal- 
ment, the  defendant  perfectly  well  knew  the  condition  of  the 
machinery. 

Such  an  answer  is,  I  think,  entirely  defective,  whether  judged 
by  the  rules  of  common  law  pleadings  or  the  more  lax  ones  pre- 
vailing under  the  Code. 

The  power  of  amendment  does*  not  aid  the  defendant.  An 
amendment  after  trial  may  be  made  to  sustain  the  judgment, 
but  not  to  reverse  it.  The  cases  on  this  point  are  collated  and 
reviewed  in  Williams  v.  Hall  (6  Bosw.,  674). 

For  these  reasons  I  think  the  judgment  should  be  affirmed, 
with  costs. 

BRADY,  J. — In  addition  to  what  Judge  CAEDOZO  has  said  in 
his  opinion,  I  deem  it  proper  to  say  that  in  this  case  the  alleged 
improper  statements  of  Captain  Marks  related  only  to  the  bed- 
plate which  was  broken,  assuming  those  statements  to  have 
been  made  under  such  circumstances  as  would  make  the  plain- 
tiffs liable  for  their  falsity.  The  other  parts  of  the  vessel  and 
her  machinery  were  accessible  to  the  defendant's  agents  sent  to 
examine  them,  and  upon  whose  report  he  determined  to  pur- 
chase. For  the  expense  of  repairing  or  replacing  the  bed-plate 
the  jury  made  the  defendant  an  allowance,  and  substantial  jus- 
tice has  been  done  in  this  case.  The  whole  case  warrants  no 


404:  ABBOTTS'  PRACTICE  REPORTS. 

People  v.  Manhattan  Gas  Light  Company. 

charge  of  fraud  -against  the  plaintiffs,  and  none  was  averred  in 
the  answer,  as  suggested  by  my  associate.  The  defendant's  re- 
quests to  charge,  and  the  exceptions  taken,  were  based  upon  an 
element  not  present,  which  is  a  sufficient  answer  to  them,  but 
aside  from  that,  the  charge  contained  all  the  propositions  in  the 
defendant's  favor,  to  which  he  was  entitled. 
The  judgment  should  be  affirmed. 

DALY,  J.,  concurred. 


PEOPLE  against  MANHATTAN  GAS  LIGHT  COMPANY. 

Supreme   Court,  First  District ;  General  Term,    November, 

1865. 

MANDAMUS. 

Where  a  gas-light  company  have,  by  law,  the  exclusive  right  and  duty  of 
furnishing  gas  to  the  public,  a  mandamus  lies,  on  the  relation  of  an  indi- 
vidual whom  they  refuse  to  supply,  to  compel  them  to  do  so. 

But  the  writ  should  not  be  issued  to  compel  them  to  supply  one  against 
whom  they  hold  a  judgment  for  gas  bills,  although  they  have  supplied 
him  for  a  time,  without  objection,  since  such  judgment  was  recovered,  and 
though  he  allege  insolvency,  and  deny  liability  upon  the  judgment. 

APPEAL  from  an  order  denying  a  motion  for  a  mandamus. 

The  relator,  De  Lancey  Kennedy,  applied  for  a  mandamus 
against  the  Manhattan  Gas  Light  Company  of  the  City  of  New- 
York,  to  compel  them  to  supply  his  building  with  gas.  The 
grounds  of  the  application  and  the  defence  are  fully  stated  in 
the  opinion. 

Timothy  Cronin,  for  the  relator,  appellant. 

T.  M.  Adams  and  B.  W.  Bonney,  for  the  respondent. 

BY  THE  COURT.* — INGRAHAM,  P.  J. — I  think,  there  can  be  no 
*  Present,  INGRAHAM,  P.  J.,  LEONARD,  and  BARNARD,  JJ. 


NEW  SEEIES;  VOL.  I.  405 

People  v.  Manhattan  Gas  Light  Company. 

doubt  about  the  authority  of  this  court  to  direct  the  respondents 
to  furnish  gas  to  persons  who  under  provisions  of  their  charter 
have  a  right  to  receive  it,  and  who  offer  to  comply  with  the 
general  conditions  on  which  the  company  supply  others. 

They  possess,  by  virtue  of- their  charter,  powers  and  privileges 
which  others  cannot  exercise,  and  the  statutory  duty  is  imposed 
upon  them  to  furnish  gas  on  payment  of  all  moneys  due  by  such 
applicants. 

We  are  left,  then,  to  inquire  whether  the  relator  was  in  a  con- 
dition to  demand  from  the  company  this  supply. 

It  appears  by  the  papers  used  on  the  motion,  that  the  relator 
commenced  taking  gas  in  1858,  at  No.  61  Seventh  Avenue,  and 
was  supplied  with  gas  by  the  company  until  the  2Sth  of  De- 
cember, 1861 ;  that  he  paid  for  the  gas  so  received  up  to  the 
19th  of  August,  1861,  and  that  for  gas  furnished  after  that  date 
he  has  not  paid. 

It  also  appears  that  in  January,  1865,  the  respondent  sued 
the  relator,  and  obtained  judgment  against  him  for  'the  amount 
due  therefor,  which  still  remains  unpaid. 

In  May,  1864,  the  relator  applied  to  the  company  for  gas  at 
121  West  Sixteenth  street,  which  was'  furnished  to  him  by  the 
company  \vithout  objection,  on  account  of  the  former  indebted- 
ness, until  J;he  9th  of  February,  1865,  when  the  company  shut 
off  the  supply  of  gas,  and  refused  to  furnish  any  more.  It  also 
appears  that  the  relator,  in  answer  to  claim  of  payment  of  the 
indebtedness,  represents  himself  insolvent  and  unable  to  pay  the 
judgment. 

There  is  nothing  in  the  charter  of  the  company  which  requires 
them  to  make  the  objection  that  the  applicant  was  indebted  to 
them  at  the  time  of  the  first  application. 

It  would  be  unreasonable  to  suppose  that  in  every  instance 
they  conld  ascertain  such  indebtedness.  If  at  any  time  the 
party  is  so  indebted,  the  company  may  refuse  to  furnish,  and 
more  especially  should  this  be  sor  when  the  relator  avows  his  in- 
solvency and  his  inability  to  pay  for  gas  furnished  previously. 

The  attempted  denial  of  liability  for  this  bill  by  the  relator 
will  not  aid  him.  The  company  have  obtained  a  judgment 
against  him.  This  is  not  disputed,  and  no  attempt  is  made  by 
him  to  set  it  aside. 

So  long  as  that  remains  in  force,  it  is  conclusive  against  him. 
The  order  appealed  from  should  be  affirmed,  with  ten  dollars  costs. 


406  ABBOTTS'  PRACTICE  REPORTS. 

Walker  v.  The  Granite  Bank. 


WALKER  against  THE  GRANITE  BANK. 

Supreme  Court,  first  Dislrict ;  Special  Term,  October,  1865. 

PLEADING. — AMENDMENT. 

In  an  action  to  recover  securities  pledged,  on  the  ground  that  the  amount 
for  which  they  were  pledged  had  been  paid,  an  answer  alleging 
that  the  amount  had  not  been  paid,  but  that  a  large  sum  still  re- 
mains unpaid,  is  not  obnoxious  to  a  motion  to  make  it  more  definite  and 
certain.  A  simple  denial  that  all  the  money  for  which  the  securities  had 
been  pledged  had  been  paid  would  have  been  enough. 

Where  an  amended  complaint  is  served  in  pursuance  of  leave  given  by  the 
court,  a  new  answer  becomes  necessary  ;  and  the  time  within  which  to 
move  to  compel  an  amendment  of  the  answer  runs  i'rom  the  time  of  filing 
it. 

Motion  by  plaintiff  to  require  the  defendants'  answer  to  be 
made  more  definite  and  certain. 

Martin  &  Smith,  for  the  motion. 
/.  T.  Williams,  opposed. 

INGRAHAM,  P.  J. — The  portion  of  the  answer  which  sets  out 
special  causes  whj  the  gratuity  was  not  voted  by  the  directors, 
should  not  have  been  inserted  in  the  answer.  The  general  alle- 
gation that  the  services  were  of  no  value  to.  the  defendants  is 
proper,  but  all  the  rest  is  mere  evidence  to  prove  the  truth  of 
the  foregoing  allegation. 

The  application  to  have  the  defendant  state  in  the  answer 
how  much  is  due  to  the  defendants  from  Holbrook,  is  denied. 
It  is  very  immaterial  what  the  amount  is.  The  plaintiff  claims 
to  recover  the  securities  on  the  ground  that  the  amount  for 
which  they  were  pledged  had  been  paid  in  part  by  collections 
and  in  part  by  sales.  The  defendants  answer  that  the  amount 
has  not  been  paid,  but  that  a  large  sum  still  remains  unpaid.  I 
do  not  think  th-e  plaintiff  has  any  right  to  require  this  allegation 
to  be  made  more  specific  by  stating  the  amount  actually  unpaid. 
That  must  be  matter  of  proof  on  the  trial.  „  The  issue  could 
have  been  as  well  formed  by  a  simple  denial  that  all  of  the 


NEW  SEKIES;  VOL.  I.  407 

Lane  v.  Bailey. 

moneys  for  which  the  securities  had  been  pledged,  were  paid  to 
the  defendants. 

The  objection  that  it  is  too  late  to  make  the  motion  is  not 
well  taken.  The  leave  to  serve  an  amended  complaint  destroyed 
the  further  pleadings,  and  rendered  a  new  answer  necessary 
The  time  within  which  to  move  to  amend  the  answer,  runs 
from  the  filing  of  it. 

Motion  granted  in  part,  as  above  stated^ 


LANE  against  BAILEY. 

Supreme  Court,  First  District;  General  Term,  November, 

1865. 

APPEAL. — NEW  TRIAL. 

An  appeal  from  an  order  denying  a  motion  for  a  new  trial  may  be  taken  af- 
ter judgment  has  been  entered,  as  well  as  before. 

The  case  of  Soverhill  v.  Post  (22  How.  Pr.,  386),  opposed. 

Where  an  appeal  is  taken  from  a  judgment,  and  there  has  been  an  appeal, 
also,  from  an  order  denying  a  new  trial,  it  is  the  better  course  to  hear 
both  appeals  together. 

Motion  to  dismiss  an  appeal. 

In  this  action,  which  was  brought  by  Robert  Lane,  and  an- 
other, the  plaintiffs  recovered  a  verdict.  The  plaintiffs  entered 
judgment  upon  the  verdict ;  and  the  defendants,  having  moved 
for  an  order  for  a  new  trial  upon  the  judge's  minutes,  which  was 
denied,  appealed  from  the  order  denying  it,  making  a  case,  and 
serving  it  in  the  usual  way,  but  without  taking  any  appeal  from 
the  judgment. 

When  the  appeal  came  on  before  the  general  term  in  Febru- 
ary, 1865,  the  plaintiff's  counsel  moved  to  dismiss  the  appeal,  aa 
being  too  late  after  judgment;  and  the  motion  was  granted,  the 


408      ABBOTTS'  PRACTICE  REPORTS. 

Lane  v.  Bailey. 

court,  per  INGKAH AM,  J.,  holding  that  a  motion  for  a  new  trial 
on  the  judge's  minutes,  made  at  the  circuit,  is  not  such  a  motion 
as  requires  a  formal  entry  of  an  order  on  its  denial.  It  is  all 
with  the  trial  merged  in  the  judgment.  The  appeal  should  be 
from  the  judgment,  and  not  from  the  denial  of  the  motion  by 
the  judge. 

The  appeal  was  accordingly  dismissed  with  the  remark  that 
it  was  evident,  from  the  papers,  that  the  defendants  had  resorted 
to  this  proceeding  to  cure  their  neglect  to  appeal  from  the  judg- 
ment, and  they  should  not  be  allowed  to  do,  indirectly,  what  the 
law  has  forbidden. 

The  defendants  applied  for,  and  obtained  leave  to  re-argue 
the  motion  to  dismiss  the  appeal,  and  the  re-argument  was  had 
at  the  general  term  in  November,  1865. 

S.  T.  Freeman,  for  the  plaintiff,  respondent. 
T.  Oronin,  for  the  defendant,  appellant. 

BY  THE  COURT.* — LEONARD,  J. — The  seqond  subdivision  of 
section  349,  gives  the  right  of  appeal  from  an  order  denying  a 
motion  for  a  new  trial. 

No  qualification  is  imposed  limiting  the  right  to  cases  where 
the  judgment  has  not  been  entered. 

This  subject  was  considered  at  general  term  in  the  sixth  dis- 
trict (13  All.  Pr.,  389 ;  S.  C.,  22  How.  Pr.,  385  ;  Pumpley  v. 
The  Village  of  Oswego).  The  right  to  appeal  was  there  upheld 
in  a  similar  case  to  the  present. 

On  the  next  page  of  the  same  volume  of  HOWARD  occurs  the 
case  of  Soverhill  v.  Post,  decided  in  the  third  district,  where  a 
contrary  rule  was  held,  but,  as  it  seems  to  me,  on  very  insufficient 
reasons.  , 

The  court  consider  the  appeal  in  the  latter  case  as  nugatory, 
because  the  judgment  will  not  be  affected  by  the  decision  on  the 
appeal,  even  should  the  verdict  be  set  aside. 

With  great  respect,  I  differ. 

Should  the  verdict  be  set  aside,  the  special  term  can,  on  mo- 
tion, vacate  the  judgment,  as  it  will  then  have  no  foundation. 

Where  an  appeal  is  taken  from  a  judgment,  and  there  has 
been  an  appeal,  also,  from  a  denial  of  motion  for  a  new  trial  on 

*  Present,  IRGRAHAM,  LEONARD  and  BARNARD. 


* ...  ;*       NEW  SERIES ;  VOL.  I.  409 

Haviland  v.  Kane. 

the  judge's  minutes,  we  think  it  the  better  course  to  hear  both 
appeals  argued  on  the  appeal  from  the  judgment. 

By  section  329  of  the  Code,  all  intermediate  orders  may  be 
reviewed  on  the  appeal  from  the  judgment,  and  the  facts,  as  well 
the  law,  may,  under  such  circumstances,  be  reviewed. 

The  motion  to  dismiss  the  appeal  should  be  denied,  but  with- 
out costs. 


HAVILAND  against  KANE. 

Supreme  Court,  First  District ;  Special  Term,  November,  1865. 
EXECUTION  AGAINST  THE  PERSON. — MOTION  FOR  SDPERSEDIAS. 

Where  a  defendant  has  been  arrested  in  the  action,  the  three  months  within 
which  the  plaintiff  must  charge  him  in  execution,  is  from  the  last  day  of 
the  special  term  for  non-enumerated  motions,  following  that  at  which 
judgment  was  obtained.* 

*  In  Dusart  v.  Delacroix  ^Supreme  Court,  First  District,  Special  Term,  1864), 
it  was  Held,  that  where  the  execution  is  for  more  than  five  hundred  dollars, 
a  defendant  applying  for  a  discharge  under  the  statute,  must  have  been  three 
months  cfiarged  in  execution.  It  is  not  enough  that  his  imprisonment  under 
the  execution  and  the  order  of  arrest  has  continued  for  three  mouths. 

This  was  a  petition  by  the  defendant  to  be  discharged  from  imprisonment. 
It  appeared  that  the  defendant  was  arrested  under  an  order  in  this  action 
on  the  29th  of  July,  1862,  and  had  ever  since  been  in  custody  Judgment 
was  entered  on  the  9th  of  May,  1863,  for  sixty-six  thousand  four  hundred 
and  forty-four  dollars  and  seventy-nine  cents,  and  on  the  9th  of  October 
1863,  the  defendant  was  charged  in  execution.  On  the  19th  of  December, 
1863,  the  defendant  served  notice  on  the  plaintiff's  attorney  that  on  the  4th 
of  January,  1864,  he  would  present  the  present  petition,  and  apply  for  a 
discharge. 

C.  L.  Spilthorn  and  John  B.  Fogarty  for  the  plaintiff,  opposed  the  appli- 
cation on  the  ground  that  the  defendant  had  not  been  three  months  in  cus- 
tody under  the  execution  as  required  by  the  statute. 

James  M.  Smith  and  H.  F.  Averill,  for  the  defendant,  contended  that  it 
was  not  necessary  that  the  defendant  should  have  been  three  months  charged 
in  execu  ion,  but  that  it  was  sufficient  that  he  should  be  charged  in  execution 
and  in  prison  under  that  and  the  order  of  arrest  for  that  period. 

BARNARD,  J.,  stated  that  he  had  examined  the  statute  with  great  care 


410  ABBOTTS'  PRACTICE  REPORTS. 

Haviland  v.  Kane. 
Motion  for  a  supersed&as. 

In  this  action,  which  was  brought  by  John  S.  Haviland 
against  Peter  Kane,  the  defendant  was  arrested,  and  not 
charged  in  execution  after  judgment  had  against  him.  He 
now  moved  for  a  supersedias. 

CP  Gorman  &  Wilson,  for  the  motion. 

A.  J.  Dithnhocfer,  for  the  plaintiff,  opposed. — I.  The  motion 
is  premature.  This  is  a  technical  proceeding,  and  the  defend- 
ant must  bring  himself  within  the  strict  letter  of  the  law.  The 
following  is  the  provision  of  the  statute  : 

"  1.  When  a  defendant  against  whom  an  order  of  arrest  has 
been  obtained,  is  at  the  time  judgment  is  rendered,  in  custody 
of  the  sheriff,  the  plaintiff  must  charge  him  in  execution  within 
three  months  from  the  last  day  of  the  term  next  following  that 
at  which  judgment  is  obtained  "  (2  fiev.  Stat.,  556,  §§  36,  37). 

If  the  word  "  term  "  in  the  statute  be  held  to  mean  what  the 
legislature,  at  the  time  of  the  passage  of  the  law,  understood 
by  the  word,  at  that  time  the  word  "  term  "  was  only  applied 
to  a  court  when  it  sat  in  bane.  Judgment  was  entered  in  this 
action  on  the  30th  day  of  June,  1865.  The  statute  says  the  de- 
fendant must  be  charged  in  execution  within  three  months  from 
the  last  day  of  the  term  next  following  that  at  which  judgment 
is  obtained. 

II.  Judgment  is  generally  obtained  either  at  the  term  of  the 
circuit  or  special  term  (trial  without  a  jury),  and  therefore,  it 
must  mean  either  one  or  the  other  of  these  terms.  It  is  no  term  of 
this  court  within  the  meaning  of  this  statute,  when  a  justice  sits  at 
chambers  to  hear  motions.  It  means  a  term  of  this  court  where  is- 
sues are  tried  by  the  court  and  judgment  is  rendered  upon  them. 
(a)  A  term  is  the  space  of  time  during  which  a  court  holds  ,a  ses- 
sion ;  sometimes  the  term  is  a  monthly,  at  others  it  is  a  quarterly 

and  had  submitted  the  question  to  some  of  his  associates,  and  after  consulta- 
tion they  were  unanimously  of  the  opinion  that  where  the  execution  is  for 
more  than  five  hundred  dollars,  a  defendant  applying  for  his  dischar| 
this  statute  must  have  been  three  months  charged  in  execution  befor 
make  this  application ;  and  that  as  the  defendant  in  this  case  was  so* 
for  more  than  five  hundred  dollars,  and  had  not  been  in  custody  under  the 
execution  for  three  months  when  he  presented  the  present  petition,  the  ap- 
plication must  be  denied. 


NEW  SERIES  ;  VOL.   I.  411 

Haviland  v.  Kane. 

period,  according  to  the  constitution  of  the  court  (Bouvier'aLaw 
Dictionary). 

III.  Three  months  have  not  yet  elapsed  since  the  last  day  of  the 
term  next  following  that  at  which  judgment  was  obtained.   This 
court  was  not  sitting  in  July,  August  or  September,  18(55  ;  there 
was  not  "  term  "  held  in  those  months  within  the  meaning  of  the 
statute.     The  first  term  of  this  court  since  the  entry  of  judgment 
in  this  action  was  October.      It  is  contended  by  'the  counsel  for 
defendant,  the  word  term  in  the  statute  should  be  held  to  apply- 
to  the  branch  of  the  court  where  the  judge  sits  at   chambers. 
The  whole  statute  becomes  ambiguous  and  uncertain.      From 
what  term  shall  the  three  months  be  calculated  ?  from  the  term 
at  chambers,  the  special,  general  term,  or  circuit  ?   To  avoid  con- 
fusion, as  to  what  is  meant  by  the  "  term  "  the  construction  must 
be  that  the  term  meant  is  the  one  that  existed  at  the  time  of 
the  passage  of  this  law,  or  the  one  at  which  issues  are  tried. 

IV.  The  defendant  has  a  perfect  remedy.      He  can  apply  to 
the  court  to  compel  plaintiff  to  issue  execution. 

V.  The  courts  have  always  strictly  construed  the  provisions 
of  this  statute  (see  Lippman  v.  Petersberger,  9  Abb.  Pr.,  209  ; 
S.  C.,  18  Row.  Fr.,  270). 

CLERKE,  J. — "We  are  to  presume,  of  course,  that  the  leg- 
islature had  a  special  purpose  in  allowing  a  term  to  inter- 
vene before  a  defendant,  who  is  in  custody  of  the  sheriff 
at  the  time  judgment  is  rendered  against  him,  can  move  for  a 
supersedeas,  on  the  ground  that  the  plaintiff  has  not  charged 
him  in  execution.  What  was  this  purpose  ?  -  Obviously  to  en- 
able either  party  to  make  any  motion,  which  the  condition 
of  the  case,  or  of  the  parties,  should  render  allowable  or  neces- 
sary. At  the  time  the  statute  was  enacted — April  19,  1813  (1 
Rev.  Stat.,  353,  §  12  ;  2  Rev.  Slot.,  256,  §§  36,  37)— motions  of 
any  kind  could  be  heard  only  at  one  of  the  four  general  terms 
of  the  court.  Afterwards,  indeed,  in  1830,  special  terms  were 
established  for  the  purpose  of  hearing  and  deciding,  during  the 
vacations  intervening  between  the  general  terms,  all  such  non- 
enumerated  business  as  may  arise,  except  such  as  the  court 
should  by  rule  direct  to  be  heard  at  the  general  term.  But,  at 
the  time  at  which  the  statute  to  which  I  have  referred,  was 
first  enacted,  and  at  the  time  it  was  copied  by  the  revisers  of 
the  Revised  Statutes,  there  were  only  those  four  genera]  or  cal- 
endar terms,  at  wliich  the  'justices  sat  in  bane,  and  at  which 


412  ABBOTTS'  PRACTICE  REPORTS. 

Bank  of  O  operstown  v.  Corlies. 

alone,  as  I  have  .said,  motions  could  be  made.  The  practice 
now,  however,  is  entirely  altered.  Terms  for  non-enumerated 
motions  are  heard  during  every  month-in  the  year.  So  that  the 
purpose  which  induced  the  legislature  to  allow  a  term  to  inter- 
vene before  a  defendant  in  custody  could  move  for  his  discharge, 
is  now  satisfied  every  month,  instead  of  every  three  months,  as 
formerly.  The  provision  must  be  construed  so  as  to  conform  to 
the  present  system,  and  not  to  one  which  no  longer  exists.  There 
could  be  no  adequate  object  now  for  allowing  a  general  term  to 
intervene  before  a  defendant  could  move  for  his  discharge  ;  be- 
cause no  motion  relating  to  the  action  could  be  made  at  a  gene- 
ral term.  On  the  contrary,  the  special  term  is  the  branch  of 
the  court,  where  alone  such  motions  can  be  made  ;  and  the  period 
within  which  the  plaintiff  must  charge  the  defendant  in  execution, 
is  from  the  last  day  of  the  special  term  for  non-enumerated  mo- 
tions, following  that  at  which  judgment  was  obtained.  In  the  pres- 
ent case  this  was,  at  the  farthest,  the  5th  day  of  August,  being  the 
Saturday  preceding  the  first  Monday  in  August.  More  than  three 
months  have  elapsed  from  that  day ;  and,  as  the  plaintiff  has 
neglected  to  charge  the  defendant  in  execution  within  that  time, 
he  must  be  discharged. 

The  motion  is  granted. 


BANK  OF  COOPERSTOWN  against  CORLIES. 
Supreme  Court,  Sixth  District ;  General  Term,  July,  1866. 

JUDGMENT    AGAINST    EXECUTORS. — PLEADING. — FRIVOLOUS    AN- 
SWER.— JOINT  APPEAL. 

Where  executors -or  administrators  are  sued  on  a  debt  of  their  decedent, 
judgment  for  the  plaintiff  should  be  in  terms  that  the  plaintiff  recover 
against  them  the  sum  mentioned  in  it,  to  be  levied  of  the  goods  and  chat- 
tels, &c.  in  their  hands,  as  executors,  &c. 

When  a  joint  answer  of  several  defendants  denies  an  allegation  in  the  com- 
plaint, which  the  plaintiff  must  prove  to  establish  his  cause  of  action  against 
some  of  the  defendants,  but  which  he  need  not  prove  to  entitle  him  to 
recover  against  the  others,  the  answer  raises  a  material  issue  for  the 
defendants  as  to  whom  the  plaintiff  must  prove  such  allegation. 


NEW  SERIES ;  VOL.  I.  413 

Bank  of  Cooperstown  v.  Corlies. 

Such  answer,  therefore,  cannot  be  held  frivolous. 

Thus,  where  the  plaintiffs,  suing  on  a  partnership  debt,  join  the  executors 

of  a  deceased   partner  and  the  surviving  partners  as  defendants,  and 

allege  the  insolvency  of  the  latter,  a  joint  answer  denying  the  insolvency 

is  not  frivolous  as  to  all  the  defendants. 
It  is  not  necessary,  in  order  to  make  such  answer  available  to  the  executors, 

that  it  should  take  an  objection  to  the  misjoinder  of  defendants. 
It  seems,  that  all  the  defendants  may  join  in  an  appeal  from  a  judgment 

against  them  on  their  joint  answer,  as  being  frivolous,  if  it  be  sufficient  as 

respects  some  of  them. 

Appeal  from  an  order  striking  out  an  answer  as  frivolous,  and 
from  the  judgment  for  plaintifls  entered  thereon. 

This  action  was  brought  by  the  Bank  of  Cooperstown  against 
Joseph  W.  Corlies,  Jr.,  Jonas  G.  Dudley  and  Frederick  Jacob- 
son,  survivors  of  the  firm  of  Joseph  W.  Corlies  &  Co.,  and  Lydia 
L.,  Joseph  W.,  Alfred  "W.  and  Edward  L.  Corlies,  executors,  &c., 
of  Joseph  W.  Corlies,  deceased.  The  allegations  of  the  com- 
plaint were  as  follows : 

.The  above-named  plaintiff,  a  corporation  duly  incorporated 
or  organized  under  article  5,  of  chapter  18,  part  1,  title  2,  of 
the  Revised  Statutes  of  the  State  of  New  York,  entitled,  "  Of 
Banking  Associations  and  Private  Bankers,"  located  and  doing 
business  in  the  county  of  Otsego,  alleges  and  shows  to  this  court, 
that,  for  several  years  previous  and  down  to  the  month  of 
October,  1860,  the  defendants,  Joseph  "W.  Corlies,  Jr.,  Jonas  G.- 
Dudley, Frederick  Jacobson,  and  one  Joseph  W.  Corlies,  were 
co-partners,  doing  business  in  the  city  of  New  York,  under  the 
firm-name  and  style  of  Joseph  W.  Corlies  and  Co. 

That,  as  such  co-partners,  they  became  indebted  to-  one  Wil- 
liam M.  Clinton,  of  Hart  wick,  in  the  county  of  Otsego,  in  the 
sum  of  four  thousand  and  eleven  dollars  and  fifty  cents,  or 
upwards,  for  goods,  wares  and  mercandise  sold  and  delivered  to 
said  co-partners,  or  advanced  to  such  co-partners,  to  be  sold  on 
commission,  and  which  were  sold  by  them,  and  the  proceeds  of 
such  sales  never  paid  over  to  the  said  Clinton. 

That  by  the  original  articles  or  contract  of  co-partnership,  the 
executors  of  the  said  Joseph  W.  Corlies,  in  case  of  his  death, 
were  to  have  and  did  have  the  right  to  continue  the  co-partner- 
ship on  the  part  of  the  said  Joseph  W.  Corlies,  and  to  take  his 
place  and  be  substituted  for  him  in  the  said  co-partnership  busi- 


414:      ABBOTTS'  PRACTICE  REPORTS. 

Bank  of  Cooperstown  v.  Corlies. 

ness,  and  the  said  co-partnership  business  to  continue,  the  same 
as  before  the  death  of  the  said  Joseph  W.  Corlies. 

That  in  the  month  of  October,  1860,  the  said  Joseph  W.  Cor- 
lies died,  and  his  executors  elected  to  go  on  with  the  co-partner- 
ship business  under  the  same  firm-name  and  style,  according  to 
the  terms  of  the  said  articles  or  contract  of  co-partnership,  and 
assumed  the  indebtedness  of  the  original  co-partnership  to  the 
said  William  M.  Clinton. 

That,  in  the  month  of  April,  1861,  the  said  co-partnership 
was  duly  dissolved,  and  the  said  firm,  or  the  members  thereof, 
proceeded  to  wind  up  the  partnership  business,  and  settle  up  the 
debts  and  liabilities  of  the  said  firm. 

That,  on  the  18th  day  of  January,  1862,  the  said  "William  M. 
Clinton  made  his  certain  draft  or  bill  of  exchange  in  writing, 
dated  on  that  day,  and  directed  to  Joseph  W.  Corlies  &  Co., 
and  thereby  required  them  to  pay  to  the  order  of  the  said  Wil- 
liam M.  Clinton,  the  drawer,  three  months  after  the  date 
thereof,  the  sum  of  four  thousand  and  eleven  dollars  and  fifty- 
five  cents,  and  the  said  dcaft  was  afterwards,  for  value  re- 
ceived, duly  accepted  by  the  said  members  of  the  dissolved  co- 
partnership, or  by  the  defendant,  Joseph  W.  Corlies,  Jr.,  who 
was  the  member  of  the  firm  deputized  and  empowered  by  the 
firm  to  settle  up  the  business  and  pay  off  the  firm  debts,  and  all 
the  liabilities  of  the  said  co-partnership,  and  who  was  a  member 
of  the  said  firm,  and  also  one  of  the  executors,  &c.,  of  the  said 
Joseph  W.  Corlies,  deceased,  and  that  the  same  was  duly 
accepted  in  the  name  of  the  said  co-partnership,  and  in  liquida- 
tion of  the  said  indebtedness  of  the  said  co-partnership  to  the 
said  William  M.  Clinton.  - 

That  afterwards,  and  before  the  said  bill  or  draft  became  due, 
the  same  was  duly  endorsed  by  the  said  payee,  William  M. 
Clinton,  and  one  Russel  Leonard,  and  W.  F.  Leonard,  and  for 
value  received,  duly  transferred  to  this  plaintiff,  who  is  now  the 
lawful  owner  and  holder  thereof. 

That  the  said  draft  or  bill  was  duly  presented  at  maturity  for 
payment,  and  payment  thereof  refused,  and  that  the  same  was 
thereupon  duly  protested ;  the  cost  of  which  protest  was  the  sum 
of  eighty-one  cents.  This  plaintiff  further  says,  that  the  said, 
draft  or  bill  of  exchange  has  not  been  paid,  or  any  part  thereof, 
but  that  the  whole  amount  thereof  still  remains  due  and 
unpaid. 


NEW  SEEIES  ;  YOL.  I.  415 


Bank  of  Cooperstown  v.  Corlies. 


The  plaintiff  further  says,  the  defendants,  Joseph  W.  Corlies, 
Jr.,  Jonas  G.  Dudley  and  Frederick  Jacobson,  survivors  as  afore- 
said, are,  and  each  and  every  one  of  them  is,  wholly  and  entirely 
irresponsible  and  insolvent,  and  has  no  property  which  can  be 
reached  by  judgment  and  execution,  either  legal  or  equitable, 
and  that  the  said  firm  has  no  assets  out  of  which  the  said  debt 
to  this  plaintiff  can  be  satisfied,  in  whole  or  in  part ;  but  that 
the  estate  of  the  said  Joseph  W.  Corlies  is  solvent,  and  has  more 
than  sufficient  assets  out  of  which  to  satisfy  the  claim  of  this 
plaintiff;  and  that  the  said  defendants,  Lydia  L.  Corlies,  Joseph 
W.  Corlies,  Jr.,  Alfred  "W".  Corlies,  and  Edward  L.  Corlies,  are 
the  executors  of  the  last  will  and  testament  of  the  said  Joseph 
W.  Corlies,  deceased,  duly  appointed,  and  to  whom  letters  testa- 
mentary have  Jbeen  duly  issued,  and  who  have  been,  and  still 
are,  acting  as  such  executors,  as  this  plaintiff  is  informed  and 
believes. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defen- 
dants in  this  action  for  the  sum  of  four  thousand  and  eleven  dol- 
lars and  fifty-five  cents,  together  with  eighty-one  cents  protest 
fees,  and  interest  on  the  whole  from  the  18th  day  of  April,  1862 ; 
and  the  decree  of  this  court  that  said  judgment  be  a  charge 
upon  the  estate  of  the  said  Joseph  "W.  Corlies,  deceased,  and  that 
the  said  executors  be  decreed  to  pay  the  same  to  this  plaintiff, 
together  with  the  costs  of  this  action,  or  for  such  other  or  further 
order,  as  to  the  court  may  seem  meet  and  proper  in  the  premises. 
The  defendants  all  joined  in  one  answer,  which  among  other 
things  denied  the  allegations  as  to  the  right  to  continue  the 
partnership,  and  the  actual  continuance  of  it,  and  the  assumption 
of  the  indebtedness,  and  also  the  allegation  that  the  surviving 
partners,  defendants,  were  irresponsible  and  insolvent.  The  an- 
swer also  contains  new  matter  relied  on  as  constituting  a  defence, 
which  it  is  not  material  to  state  for  an  understanding  of  the 
points  decided  on  the  appeal. 

The  plaintiff  made  a  motion,  at  the  Tioga  special  term  of  this 
court  in  March,  I860,  for  judgment,"bn  the  ground  that  the  de- 
fendants' answer  to  the  complaint  was  frivolous — which  motion 
was  granted,  and  judgment  was  thereupon  rendered  in  favor  of 
the  plaintiff  against  the  defendants  jointly,  for  five  thousand 
one  hundred  and  fifty-three  dollars  and  thirteen  cents  damages 
and  costs. 


416  ABBOTTS'  PKACTICE  KEPOETS. 

Bank  of  Cooperstown  v  Corlies. 

The  defendants  appealed  from  the  order  and  judgment  to  the 
general  term  of  this  court. 

Lynes  &  Bowem,  for  the  plaintiffs. 

J.  Soils  Ritterband,  for  the  defendants, — Cited,  as  to  what  is 
frivolousness  in  pleading,  Hall  v.  Smith,  8  How.  /*/-.,  150 ; 
Nichols  y.  Jones,  6  Id.,  358 ;  Sixpenny  Savings  Bank  v.  Sloan,  2 
Abb.  Pr.,  414  ;  and  see  1 2  How.  Pr.,  544.  And  as  to  the  materi- 
ality of  the  denial  of  insolvency,  Voorhies  v.  Baxter,  18  Barb.^ 
592 ;  and  1  Abb.  Pr.,  43 ;  Voorhies  v.  Childs,  17  N.  Y.,  354  ;  Code 
of  Procedure,  §  147  ;  Hornfager  v.  Hornfager,  6  How.  Pr.,  279 ; 
2  Whitt.  Pr.,  54,  55. 

BY  THE  COURT.* — BALCOM,  J. — The  complaint  shows  that  the 
firm  of  Joseph  W,  Corlies  &  Co.,  were  indebted'to  William  M. 
Clinton  for  goods,  wares,  and  merchandise,  which  the  latter  sold 
to  the  former :  that  Clinton  drew  on  Corlies  &  Co.  for  the  debt, 
after  the  death  of  Joseph  W.  Corlies  ;  that  the  draft  was  accepted 
by  the  defendants,  including  the  executors  of  the  deceased 
member  of  the  firm  ;  and  that  Clinton  afterwards  endorsed  the 
draft  and  transferred  it  to  the  plaintiff:  that  the  survivors  of 
the  firm  (who  are  made  defendants),  are,  and  eacn  and  every 
of  them  is,  wholly  and  entirely  irresponsible  and  insolvent,  and 
have  no  property  which  can  be  reached  by  judgment  and  exe- 
cution, either  legal  or  equitable  ;  and  that  the  firm  have  no 
assets  out  of  which  the  debt  to  the  plaintiff  can  be  satisfied,  in 
whole  or  in  part.  There  is  no  allegation  in  the  complaint  that 
the  debt,  for  which  the  draft  was  given,  has  been  transferred  or 
assigned  to  the  plaintiff.  The  executors  of  the  deceased  mem- 
ber of  the  firm  are  made  defendants  ;  and  judgment  is  demanded 
in  the  complaint  against  the  defendants  for  the  amount  of  the 
draft  with  interest,  and  notary's  fees  for  protesting  the  draft ; 
and  a  decree  is  also  demanded  in  the  complaint  that  the  judg- 
ment be  a  charge  upon  the  estate  of  Joseph  \Y.  Corlies,  deceased, 
and  that  his  executors  be  required  to  pay  the  judgment  to  the 
plaintiff  with  costs. 

The  defendants  answered  jointly ;  and  in  their  answer  they 
denied  the  allegations  in  the  complaint  as  to  the  insolvency  of 
the  survivors  of  the  firm  of  Corlies  &  Co. 


*  Present  PARKER,  MASON,  BALCOM  and  BOARDMAN,  JJ. 


NEW  SERIES ;  VOL.  I.  4y 

Bank  of  Cooperstown  v.  Corlies. 

The  judgment  rendered  in  the  action  is  erroneous,  for  the 
reason  that  it  is  against  the  executors  of  Joseph  "W.  Corlies  de- 
ceased personally,  and  is  not  that  tfie  plaintiif  recover  against 
them  the  sum  mentioned  in  it,  to  be  levied  and  collected  of  the 
goods  and  chattels,  '&c.,  in  their  hands  as  executors,  &c. ;  and  it  is 
a  joint  judgment  against  all  the  defendants  personally. 

The  denial,  in  the  answer,  of  the  allegations  in  the  com- 
plaint as  to  the  insolvency  of  the  survivors  of  Corlies  &  Co., 
though  made  by  all  the  defendants  jointly,  formed  a  material 
issue  between  the  plaintiffs  and  the  executors  of  the  Deceased 
member  of  the  firm.  It  is  well  settled  that  the  personal  repre- 
sentatives of  a  deceased  partner  cannot  be  joined  as  a  party  de- 
fendant, with  the  surviving  partner,  to  an  action  for  a  partner- 
ship debt,  where  the  complaint  does  not  show  the  plaintiff's  in- 
ability to  procure  satisfaction  from  the  survivors.  And  when 
the  complaint  shows  that  fact,  the  plaintiff  must  prove  it  to 
entitle  him  to  recover  against  such  representatives  (Voorhies  v. 
Childs'  Executor,  17  N.  Y.,  354  ;  Tracy  v.  Suydam,  30  Barb., 
110 ;  18  Id.,  592  ;  16  Id.,  289  ;  11  Paige,  80  ;  S.  C.,  2  Den.,  577  ; 
8  N.  Y.  [4  SeldJ],  362 ;  2  Sandf.  Ch.,  573  ;  2  Johns.  Ch.,  508  ; 
1  Cai.  Gas.,  122). 

The  judge  at  the  special  term  was  of  the  opinion  that  the  de- 
nial in  the  answer,  of  the  allegations  in  the  complaint  of  the 
insolvency  of  the  survivors  of  the  firm  of  Corlies  &  Co.  was 
"  meaningless,"  for  the  reason  that  there  was  no  defence  of  mis- 
joinder  of  defendants.  But  I  am  of  the  opinion  that  no 
such  defence  was  necessary  by  the  representatives  of  the  de- 
ceased member  of  the  firm  ;  for  if  there  be  a  misjoinder  of  de- 
fendants the  plaintiff  must  still  prove  that  the  survivors  of  the 
firm  are  insolvent  before  any  judgment  can  be  rendered  against 
the  representatives  of  the  deceased  member.  When  too  many 
persons  are  made  defendants  none  of  them,  against  whom  a 
cause  of  action  is  alleged  in  the  complaint,  can  demur  to  it,  for 
a  defect  of  parties  defendants  (Churchill  v.  Trapp,  3  Alb.  Pr., 
306 ;  17  N.  Y.,  592). 

If  the  complaint  fails  to  sl^>w  a  cause  of  action  against  the 
executors  of  Joseph  W.  Corlies  deceased,  as  acceptors  of  the 
draft  in  question,  or  for  the  reason  that  there  is  no  allegation  in 
it  that  the  demand,  for  which  the  draft  was  given,  has  been 
transferred  to  the  plaintiff,  the  executors  may  take  advantage 
K  S.— YOL.  I.— 27. 


ABBOTTS'  PEACTICE  EEPOETS. 


Bank  of  Cooperstovrn  v.  Corlies. 


of  such  defect  upon  the  trial  (Higgins  v.  Rockwell,  2  Duer, 
650). 

The  denial  of  insolvency  referred  to  formed  no  material  issue 
between  the  plaintiff  and  the  surviving  members  of  the  firm  of 
Corlies  &  Co.,  for  the  reason  that  the  former  need  not  prove  the 
latter  were  insolvent  to  recover  against  them,  if  a  recovery  can 
be  had  in  the  action  against  all  the  defendants.  But  I  am  of 
the  opinion  that  the  fact  that  the  survivors  of  the  firm  united 
with  the  executors  of  the  deceased  member  in  denying  the 
alleged  insolvency  of  the  former,  did  not  render  such  denial  by 
the  latter  frivolous.  It  is,  notwithstanding,  a  denial,  by  the  ex- 
ecutors, of  a  material  allegation  in  the  complaint,  which  the 
plaintiff  must  prove,  or  the.  executors  will  be  entitled  to  a  dis- 
missal of  the  complaint.  And  no  authority  need  be  cited  to 
show  that  an  answer  is  not  frivolous  which  traverses  a  material 
allegation  in  the  complaint.  A  frivolous  answer  is  one,  which, 
assuming  its  contents  to  be  true,  presents  no  defence  to  the  ac- 
tion. An  informal  answer,  if  it  presents  a  defence,  is  not  frivo- 
lous (5  Abb.  Pr.,  453  ;  9  Id.,  23).  And  I  am  of  the  opinion  that 
a  joint  answer  of  several  defendants,  that  presents  a  defence  to 
the  action  for  one  defendant,  by  a  denial  of  a  material  allega- 
tion in  the  complaint,  should  not  be  adjudged  frivolous  as  to  all 
the  defendants.  I  am  aware  of  the  rule  that  existed  prior  to  the 
Code  of  Procedure,  —  that  if  two  or  more  persons  joined  in  a 
special  plea,  which  was  sufficient  for  one,  but  not  for  the  others, 
the  plea  was  bad  as  to  all  (see  Grah.  Pr.,  2d  ed.,  241  and  242). 
Perhaps  this  rule  is  applicable  to  answers  under  the  Code  setting 
up  new  matter  for  a  defence.  But  under  the  Code,  denials,  in 
the  answer,  of  material  allegations  in  the  complaint,  are  a  sub- 
stitute for  the  plea  of  the  general  issue  under  the  old  system  of 
pleading  (McKyring  v.  feull,  16  JV".  JT.,  297)  ;  which  plea,  though 
jointly  interposed  by  several  defendants,  was  good  in  all  cases, 
for  either  defendant  against  whom  the  plaintiff  failed  to  establish 
a  cause  of  action.  And  I  am  of  the  opinion  that  when  a  joint 
answer  of  several  defendants  denies  an  allegation  in  the  com- 
plaint, which  the  plaintiff  must  prpve  to  establish  his  cause  of 
action  against  some  of  the  defendants,  but  which  he  need  not 
prove  to  entitle  him  to  recover  against  the  others,  the  answer 
must  be  held  go6d  at  the  trial  for  the  defendants  as  to  whom  the 
plaintiff  must  prove  such  allegation. 

Whether,  where  such  a  defect  in  the  answer  appears  upon  the 


NEW   SLEIES;  VOL.   I.  419 

Jananique  v.  De  Luc. 

face  thereof,  tlie  plaintiff  can  demur  to  it  under  section  153  of 
the  Code,  need  not  be  determined. 

The  motion  in  this  case  was  for  judgment,  on  the  ground  that 
the  answer  was  frivolous  as  to  all  the  defendants ;  and  it  was 
adjudged  to  be  so  at  the  special  term,  and  all  the  defendants 
have  jointly  appealed  from  the  order  and  judgment  of  the 
special  term.  I  think  they  had  the  right  to  join  in  the  appeal 
(see  Grah.  Pr.,  2d  ed.,  937;  Id.,  960  ;  11  Wend.,  174);  though 
it  is  probable  the  executors  of  Joseph  "W.  Corlies,  deceased,  could 
have  appealed  alone  (see  Code  of  Procedure,  §  325 ;  Mattison  v. 
Jones,  9  How.  JPr.,  152).  But  the  point  that  the  defendants 
could  not  join  in  the  appeal  has  not  been  taken. 

My  conclusion  is  that  the  order  and  judgment  declaring  the 
answer  frivolous  should  be  reversed,  with  costs ;  and  that  the 
plaintiff's  motion  for  judgment  for  the  alleged  frivolousness  of 
the  answer  should  be  denied,  with  costs. 

Ordered  accordingly. 


JANANIQUE  against  DE  LUC. 

New  York  Common  Pleas  /  General  Term,  February,  1865. 
AKKEST. — APPEAL. 

The  right  to  arrest  the  defendant,  in  an  action  brought  to  recover  possession 
of  specific  personal  property,  depends,  not  on  the  character  of  the  cause  of 
action,  but  on  the  question  whether  the  defendant  has  disposed  of  the 
property  so  that  it  could  not  be  found  by  the  sheriff,  or  with  intent  to  de- 
fraud the  plaintiff  of  it. 

Hence,  the  ground  of  arrest  in  such  an  action  may  be  tried  on  the  affidavits, 
and  if,  on  a  motion  to  vacate  the  arrest,  the  affidavits  are  conflicting  on  this 
point,  the  decision  of  the  motion  will  not  be  reversed  on  appeal. 

Appeal  from  an  order  vacating  an  order  of  arrest. 

This  was  an  action  brought  by  Theophile  Jananique  to  recover 
a  piece  of  lace,. and  thirty  dollars  damages  for  the  unlawful  de- 
tention thereof  by  defendant,  Isabella  De  Luc. 


420  ABBOTTS'  PEACTICE  EEPORTS. 

Jananique  v.  De  Luc. 

An  order  of  arrest  against  the  defendant  was  granted  upon  an 
affidavit  stating  the  cause  of  action,  and  that  the  goods  were 
concealed  so  that  the  sheriff  could  not  find  them. 

Defendant  moved  to  vacate  the  order  of  arrest  upon  affidavits 
denying  the  possession  of  the  goods,  and  declaring  that  no 
requisition  had  been  made  to  the  sheriff  to  demand  the  same. 

At  special  term,  September  16,  1864,  after  argument,  Judge 
DALY  vacated  the  order  of  arrest. 

The  plaintiff  appealed  to  the  court  at  general  term. 

F.  H.  B.  Bryan,  for  the  plaintiff,  appellant. 
F.  R.  Coudert,  for  the  defendant,  respondent. 

BY  THE  COURT. — CAKDOZO,  J. — As  the  order  of  arrest  in  this 
action  was  granted  by  me,  I  may  take  the  liberty  of  saying  that 
it  was  most  inadvertently  granted  upon  an  affidavit  which  I  am 
satisfied  was  entirely  insufficient,  and  that  had  the  application 
below  been  to  vacate  the  order  on  that  ground  alone,  it  should, 
and  would,  have  prevailed.  But  as  the  defendant  did  not  rely 
exclusively  oh  the  plaintiff's  papers,  but  moved  on  the  merits,  it 
will  not  be  necessary  to  revie*w  and  point  out  the  defects  of  the 
original  affidavits,  especially  since  if  that  affidavit  be  assumed  to 
be  sufficient,  the  order  below  was  right  on  the  whole  case  as  dis- 
closed by  both  sides. 

The  application  for  arrest  was  made  under  subd.  3  of  section 
179  of  the  Code.  In  such  cases,  the  right  to  arrest  does  not  spring 
from  the  cause  of  action,  and  consequently  the  rule  that  where  the 
cause  of  action  furnishes  the  ground  of  arrest,  the  order  will  not 
be  vacated  upon  a  denial  of  the  alleged  cause  of  action,  because 
that  would  be  to  try  the  case  on  affidavits,  has  no  application. 

This  action,  which,  when  suits  had  names,  would  have  been 
called  an  action  of  replevin,  was  brought  to  recover  the  posses- 
sion of  personal  property. 

In  such  actions,  the  defendant  cannot  be  held  to  bail,  as  a  mat- 
ter of  course,  but  if  it  appear  tha,t  he  has  concealed,  removed  or 
disposed  of  the  property  or  any  part  thereof,  so  that  it  cannot  be 
found  or  taken  by  the  sheriff,  and  with  intent  that  it  shall  not  be 
so  found  or  taken,  or  with  the  intent  to  deprive  the  plaintiff 
thereof,  he  may  be  arrested. 

The  right  to  arrest,  therefore,  depends  not  upon  the  character 
of  this  action,  but  upon  the  question  whether  the  defendant  has 


NEW  SERIES;  VOL.  I.  421 

Delaney  v.  Brett. 

concealed,  removed  or  disposed  of  the  property  so  that  it  cannot 
be  found  or  taken  by  the  sheriff,  and  with  the  intent  that  it  shall 
not  be  so  found  or  taken,  or  with  the  intent  to  defraud  the 
plaintiff  of  the  benefit  thereof.  This  is  not  matter  which  could 
be  averred  in  the  complaint,  and  traversed  by  the  answer,  and, 
therefore,  is  not  within  the  reason  of  the  rule  whiclyefuses  to  try 
the  merits  of  an  action  on  affidavits. 

This  is  really  the  only  question  which  is  worthy  of  remark,  for 
no  one  can  read  the  papers  on  this  appeal  without  concluding 
that  the  preponderance  of  evidence  is  decidedly  in  favor  of  the 
defendant.  But  even  if  this  were  not  so  apparent,  as  the  papers 
are  conflicting,  I  think  the  proper  rule  is  to  hold  that  the  de- 
cision below  must  be  regarded  as  conclusive  on  the  facts. 

I  think  the  order  below  is  clearly  right,  and  should  be  af- 
firmed, with  costs. 


DELANEY  against  BRETT. 
New  York  Superior  Court ;  General  Term,  1866. 

ATTACHMENT    AGAINST    VESSELS. — SUPERIOR    COURT    OF 
YORK. — RECITALS  OP  BOND. 

The  justices  of  the  Superior  Court  of  the  city  of  New  York  have  power  to 
issue  attachments  against  vessels,  under  the  act  of  1862. 

On  an  application  for  an  attachment  under  that  act,  a  specification  of  the 
debt  need  not  be  filed,  unless,  the  vessel  has  left  the  port  where  the  debt 
was  contracted. 

A  bond  given  to  discharge  the  vessel  from  such  an  attachment  is  not  void 
by  reason  of  irregularities  in  the  issuing  of  the  attachment.  (Per  ROBERT- 
SON, Ch.  J.) 

It  will  be  presumed  that  the  requisite  undertaking  was  given  by  the  cred- 
itor on  issuing  the  attachment,  especially  where  the  warrant  recites  that 
this  was  done. 

This  action  was  brought  by  William  H.  Delaney  against 
Tames  E.  and  Gustavus  A.  Brett,  upon  a  bond,  given  to  discharge 
an  attachment  against  the  brig  Laura  12uss,  issued  under  the 


422  ABBOTTS'  PRACTICE  REPORTS. 

Delaney  v.  lirett. 

act  of  1862  (Laws  of  1862,  95T).  The  attachment  was  granted 
by  Hon.  A.  L.  ROBERTSON,  Chief  Justice  of  the  New  York 
Superior  Court,  on  application  of  the  plaintiff,  on  the  2Sth  of 
September,  1864.  The  application  did  not  set  forth  that  any 
specification  of  the  lien  or  claim  -had  been  filed.  The  defendants 
gave  the  bond  in  suit  to  procure  the  vessel's  discharge.  The 
action  was  tried  on  the  23rd  of  May,  1865,  before  Hon.  Justice 
MONELL  and  a  jury,  and  a  verdict  rendered  in  favor  of  plaintiff 
for  one  hundred  and  two  dollars  and  eighty-six  cents.  "When 
plaintiff  rested  his  case,  a  motion  was  made  for  a  dismissal  of 
the  complaint;  which  motion  was  denied,  and  defendants' 
counsel  excepted. 

Beebe,  Dean  &  Donahue,  for  the  defendants. — I.  The  com- 
plaint should  have  been  dismissed,  because,  1.  It  did  not  appear 
that  the  specification  required* by  the  statute  had  been  filed 
before  the  application  for  the  attachment.  2.  The  application 
did  not  state  where  the  specification  was  filed.  3.  There  was  no 
evidence  that  any  undertaking  was  given  by  the  plaintiff. 

II.  The  justice  granting  the  attachment  had  no  power  to  grant 
the  same. 

A  justice  of  the  Superior  Court  has  no  power  by  law  to  act  as  jus- 
tice of  the  Supreme  Court,  at  chambers  in  term  time.  If  it  should 
be  held  that  he  has,  then  he  has  at  all  times  a  right  to  act  as  such 
in  granting  orders  of  arrest,  injunctions,  extensions  of  time, 
attachments,  and  any  other  order  or  provisional  remedy  in  suits 
pending  in  the  Supreme  Court.  It  should  at  least  appear  affirma- 
tively that  the  application  was  made  and  granted  when  there 
was  no  term  of  the  Supreme  Court. 

III.  It  did  not  appear  that  the  vessel  was  within  the  county  of 
New  York  at  the  time  of  the  application  (§  4).     The  applica- 
tion stated  "  that  said  vessel  has  not  departed  from  said  port  of 
New  York  since  said  debt  was  contracted."    The  port  of  New 
York  includes  more  than  the  county  of  New  York,  it  includes 
Kings,  Queens,  Richmond  and  Westchester  counties,  and  Jersey 
City  in  the  State  of  New  Jersey,  and  the  vessel  might  have 
been  in  any  one  of  those  places  at  the  time  of  the  application — 
it  was  necessary  to  state  the  county  to  give  jurisdiction  to  the 
officer  granting  the  warrant. 

Emerson,  Goodrich  &  Knowlton,  for  the  plaintiffs. 


NEW  SERIES ;  VOL.  I.  423 

Delaney  u.  Brett. 

BAKBOUK,  J. — The  objection  of  the  appellants  that  the  attach- 
ment against  the  vessel  in  this  case  was  not  allowed  by  an  officer 
authorized  by  law  to  perform  the  duties  of  a  justice  of  the 
Supreme  Court  at  chambers  is  untenable.  The  statute  expressly 
declares  that  the  chief  justice  and  each  of  the  associate  justices 
of  the  Superior  Court  shall  be  and  are  authorized  to  perform  all 
the  duties  which  the  justices  of  the  Supreme  Court  out  of  term 
are  authorized  to  do  and  perform  by  any  statute  of  this  State. 
(3  Rev.  Stat.,  $th  ed.,  359 ;  §  17). 

It  was  not  necessary  that  the  application  for  the  attachment 
should  state  in  what  place  the  specification  was  filed.  For  the 
act  does  not  require  the  filing  of  a  specification  unless  the  ship 
should  have  left  the  port  where  the  debt  was  contracted  before 
such  application  is  made  ;  and  in  this  case  she  still  remained 
there. 

If  the  specific  objection  to  the  attachment,  because  of  the 
failure  of  the  plaintiff  to  prove  that  an  undertaking  has  been 
given,  had  been  stated  to  the  court  upon  the'  motion  of  the  de- 
fendant to  dismiss  the  complaint,  it  is  quite  probable  that  the 
defect  in  the  proof  in  that  regard  might  have  been  supplied,  if 
the  plaintiff  had  deemed  it  necessary.  As  the  question  was  not 
raised  or  passed  upon  at  the  trial,  there  is  no  decision  upon  the 
point  which  we  have  power  to  review. 

Independent  of  that,  however,  we  are  bound  to  assume,  in  the 
absence  of  evidence  to  the  contrary,  that  the  justice  who  issued 
the  warrant  of  attaehment'performed  his  duty  by  receiving  from 
the  plaintiff  the  undertaking  which  is  required  by  the  seventh 
section  of  the  act,  previous  to  issuing  such  attachment. 

The  judgment  must  be  affirmed  with  costs. 

ROBERTSON,  Ch.  J. — This  was  an  action  upon  a  bond  exe- 
cuted by  the  defendants  in  a  certain  penal  sum  ($206), 
conditioned  to  pay  the  amount  of  all  claims  and  demands,  due 
the  plaintiff,  established  to  be  subsisting  liens  on  a  certain  ves- 
sel (The  Laura-Ross),  under  an  act  to  provide  for  the  collection 
of  demands  against  ships  and  vessels,  passed  in  April  1862 
(N.  T.  Session  Laws,  1862,  987).  The  bond  recited  the  issuing 
of  a  warrant  of  attachment  against  such  vessel,  but  not  that  such 
bond  was  given  to  procure  its  discharge  ;  nor  is  there  any  evi- 
dence that  it  wast  given  for  such  purpose.  *  " 


424  ABBOTTS'  PRACTICE  REPORTS. 

Stryker  v.  Storm. 

The  only  objections  on  the  trial  were  to  the  regularity  of  the 
issuing  of  the  attachment. 

However  irregular  the  attachment  may  have  been,  the  bond 
was  not  void  (Ring  v.  Gibbs,  26  Wen d.,  502 ;  Franklin  v.  Pen- 
dleton,  3  Sandf.,  572 ;  S.  C.  on  appeal,  7  N.  Y.  [3  Scld.],  508). 
The  only  questions  on  the  trial  were  as  to  the  nature  and  amount 
of  the  plaintiff's  claim,  and  whether  it  was  a  subsisting  lien 
(same  cases). 

The  execution  of  the  bond  was  a  waiver  of  irregularities. 

The  justices  of  this  court  have  authority  to  issue  such  warrants 
(Renard  v.  Hargous,  13  N.  Y.  [3  Kern.'],  259). 

There  was  no  necessity  of  filing  a  specification  of  the  lien, 
unless  the  vessel  left  the  port  (Laws  of  1862,  957  ;  §  2),  as  there 
was  no  proof  that  she  had  done  so. 

The  warrant  recites  that  an  undertaking  was  given  ;  the  defen- 
dants did  not  prove  the  contrary,  and  every  intendment  must 
be  made  against  them. 

I  concur  in  affirming  -the  judgment,  with  costs. 


STRYKER  against  STORM. 
Supreme  Court,  Third  District ;  Special  Term,  March,  1866. 

JUDICIAL   SALE. — SETTING  ASIDE  ON  MOTION. 

The  court  will  not  set  aside  a  judicial  sale  on  the  ground  that  the  guardian 
of  infants  who  are  interested  failed  to  attend  the  sale,  unless  it  be  shown 
that  in  consequence  of  such  non-attendance  the  property  sold  at  a  lesa 
price  than  it  would  have  brought  if  the  guardian  had  attended. 

Where  the  sale  was  well  attended  and  fairly  conducted,  it  should  not  be  set 
aside,  even  at  the  instance  of  infants  unless  it  is  made  to  appear  that,  upon 
a  resale,  their  share  of  the  proceeds,  after  indemnifying  the  purchaser  at 
the  first  sale,  will  be  materially  increased. 

Motion  on  the  part  of  the  plaintiff  to  confirm  a  sale  in  parti- 
tion. Also,  on  the  part  of  certain  of  the  defendants  to  open  such 
sale. 


NEW  SERIES;   VOL.   I.  425 

Stryker  v.  Storm. 

The  action  was  brought  by  Samuel  G.  Stryker  against  Har- 
man  V.  Storm  and  others. 

The  facts  involved  in  the  present  motions  are  stated  in  the 
opinion  of  the  court. 

Martin  J.  Townshend,  and  J.  Brown,  for  plaintiff. 
E.  F.  Bullard,  for  defendant. 

ING  ALLS,  J. — It  is  not  pretended  that  the  sale  was  irregular,  or 
that  there  has  been  any  improper  conduct  on  the  part  of  the 
referee,  or  any  of  the  parties  who  attended  the  sale.  Carroll 
purchased  the  farm  at  the  price  of  eight  thousand  one  hundred 
dollar?,  after  the  parties  who  were  interested,  and  who  attended 
the  sale,  had  consulted,  and  deliberately  determined  not  to  bid 
beyond  such  sum.  The  motion  to  open  the  sale  is  made 
upon  the  ground  that  the  general  and  special  guardians  of  Bar- 
ront  and  Theodore  Storm,  who  are  infants,  and  owners  of  an  un- 
divided half  of  the  premises  sold,  failed  to  attend  the  sale. 

It  appears  from  the  papers  that  the  said  guardians  started 
from  Jonesville  on  the  morning  of  the  day  the  sale  occurred, 
and  went  to  Waterford  to  take  the  cars,  which  were  there  due 
at  nine*  o'clock  and  thirty-five  minutes,  A.  M.,  for  the  city  of  Al- 
bany, to  attend  the  sale,  which  was  advertised  for  twelve  o'clock, 
noon.  That  such  train  was  delayed  so  that  it  did  not  arrive 
at  Waterford  until  nearly  one  o'clock,  p.  M.  No  other  mode 
of  conveyance  was  sought,  although  the  distance  from  Water- 
ford  to  Albany  was  only  nine  or  ten  miles.  The  guardians,  with 
their  counsel,  reached  Albany  after  the  sale.  It  does  not  appear 
by  the  papers  that  a  greater  sum  would  have  been  bid  for  the 
farm  if  such  guardians  had  been  present  at  the  sale.  '  The  affi- 
davit of  Chauncey  Broughton  is  produced,  in.  which  he  states 
that  such  farm  contains  one  hundred  and  ten  acres,  and  is  worth, 
in  his  opinion,  ninety  dollars  per  acre.  Also  the- affidavit  of 
George  A.  Godfrey,  who  therein  states  that  in  his  judgment  it  is 
worth  one  hundred  dollars  per  acre.  Mr.  Bollard,  the  counsel  for 
the  guardians,  in  his  affidavit,  states  that  the  general  guardians  of 
the  infants  will  bid  on  a  resale  eight  thousand  five  hundred  dol- 
lars for  the  farm.  Mr.  Bullard,  upon  the  argument  of  the  mo- 
tion, submitted,  on  his  own  behalf,  a  written  proposition  offering 
to  bid  on  a  resale  nine  thousand  dollars,  which  proposition  was 


426  ABBOTTS'  PKACTICE  REPORTS. 

Stryker  v.  Storm. 

objected,  to  by  the  counsel  for  the  plaintiff,  on  the  ground  that  no 
such  offer  accompanied  the  motion  papers. 

In  opposition  to  the  foregoing,  tl&t  plaintiff  produced  the  affi- 
davit of  William  Van  Dermark,  in  which  he  states  that  the 
value  of  the  farm  does  not  exceed  seven  thousand  dollars ;  also, 
the  affidavit  of  Morris  Mann,  who  states  that  the  value  of  the 
farm  does  not  exceed  eight  thousand  dollars. 

It  appears  that  Carroll  has  borrowed  four  thousand  and  ten 
dollars  for  the  purpose  of  performing  the  contract  of  sale  on  his 
part,  and  has  subjected  himself  to  an  expense  of  not  less  than  one 
hundred  dollars  in  procuring  counsel  to  protect  what  he  deems 
his  rights,  and  has  been  subjected  to  loss  of  time,  and  some 
other  expenses  in  the  matter.  There  was  a  full  attendance  at 
such  sale,  and  all  the  parties  interested,  except  the  said  infants, 
either  attended  in  person,  or  were  represented.  The  children  of 
the  defendant  Harman  Y.  Storm,  who  are  also  infants,  are  inter- 
ested in  the  premises,  and  their  said  father  bid  at  the  sale  eight 
thousand  dollars,  and  then  allowed  the  farm  to  be  struck  off  to 
Carroll  at  the  said  sum  of  eight  thousand  one  hundred  dollars. 
All  the  parties  interested  are  satisfied  with  the  sale,  except  the 
guardians  of  the  children  of  Theodore  Storm. 

Mere  inadequacy  of  price  will  not  authorize  a  resale^  unless  it 
is  so  gross  as  to  justify  an  inference  of  fraud,  surprise,  or  improper 
conduct  on  the  part  of  the  person  moving  such  sale  (Gould  v. 
Gager,  18  All.  Pr.,  32;  S.  0.,  24  How.  Pr.,  440  ;  Whitbeck  v. 
Rowe,  25  How.  Pr.,  403).  In  the  last  case,  Justice  HOGEBOOM 
remarks  :  "  "We  have  no  rule  of  equity  which  permits  us  to  set 
aside  a  sale  in  the  absence  of  fraud,  misconduct,  surprise,  or 
mere  grounded  misapprehension,  simply  because  a  higher  price 
can  be  reasonably  anticipated  on  a  resale  of  the  premises^  how- 
ever just  in  theory  such  a  rule  might  appear  to  be  if  the  advance 
in  price  were  marked  and  decided." 

It  is  apparent  from  the  facts  in  this  case,  that  the  sale  can  not 
be  set  aside  upon  such  grounds.  The  resale  must  be  ordered,  if  at 
all,  on  the  ground  that  the  guardians  failed  to  attend  such  sale, 
under  the  circumstances  detailed  in  the  affidavit  of  Mr.  Bullard ; 
and  in  order  to  interfere,  the  court  should  be  satisfied  that  in 
consequence  of  such  non-attendance  the  property  sold  for  a  price 
less  than  it  would  have  brought,  if  said  guardians  had  atttended 
the  sale.  It  does  not  appear  by  the  papers  that  either  of  the 
parties  would  have  bid  one  dollar  beyond  the  eight  thousand 


;  NEW  SEEIES ;  VOL.  I.  427 

Stryker  v.  Storm. 

one  hundred  dollars,  if  they  had  reached  Albany  before  the  sale 
was  concluded.  I  deem  this  an  important  consideration,  as  it 
would  be  a  dangerous  rule  to  establish — that  a  judicial  sale 
could  be  set  aside  merely  because  it  was  discovered,  after  the 
sale  had  occurred,  that  some  person  who  did  not  attend  the  sale 
estimated  the  value  of  the  property  at  a  price  exceeding  the  sum 
at  which  the  same  was  regularly  and  fairly  sold. 

In  regard  to  the  actual  value  of  the  farm,  there  is  a  direct 
conflict  in  the  estimates  contained  in  the  affidavits ;  and  the  re- 
sult of  the  sale,  which  is  conceded  to  have  been  well  attended 
and  fairly  conducted,  favors  the  valuation  contained  in  the  affi- 
davits read  in  opposition  to  the  motion  for  a  resale  of  the  prem- 
ises. 

Assuming  that  the  guardians  will,  upon  a  resale,  bid  eight 
thousand  five  hundred  dollars,  I  am  of  opinion  that  the  interests 
of  the  infants  would  not  be  promoted  by  such  resale.  Only 
four  hundred  cellars  would  be  added  to  the  price,  of  which  the 
said  infants  would  be  entitled  to  one  half,  subject  to  an  allow- 
ance to  Carroll  of  such  a  sum  as  would  be  just  for  the  expenses 
he  has  incurred,  and  the  costs  of  resale.  It  would  be  unjust  to- 
wards Carroll  to  deprive  him  of  the  benefit  of  a  purchase  fairly 
made  and  fully  performed  on  his  part,  without  a  reasonable  com- 
pensation, which  should  at  least  cover  the  expense  which  he  has 
incurred  (American  Life  Ins.  Co.  v.  Oakley,  9  Paige,  259  ;  Lentz 
v.  Craig,  2  A II.  Pr.,  294 ;  S.  C.,  13  Now.  Pr.,  72 ;  Murdock  v. 
Empie,  9  All.  Pr.,  283 ;  S.  0.,  19  How.  Pr.,  79). 

If  it  be  further  assumed  that  Mr.  Bullard  should  bid  nine 
thousand  dollars,  agreeably  to  the  offer  which  he  submitted  in 
the  manner  aforesaid,  I  ana  still  inclined  to  think  the  advance 
would  not  justify  a  resale,  as  the  infants  would  be  but  slightly 
benefitted  after  deducting  the  amount  which  Carroll  should  re- 
ceive, and  the  expenses  of  a  resale.  Again,  there  are  other 
parties  interested  who  are  satisfied  with  the  sale,  and  desire  its 
confirmation,  and  their  rights  are  to  be  regarded. 

It  is  true,  that  the  court  should  be  vigilant  in  protecting  the 
rights  and  interests  of  infants,  and  not  allow  even  the  negligence 
or  unfaithfulness  of  their  guardians  to  prejudice  their  rights 
(Lefevre  v.  Laraway,  22  Sari).,  168 ;  Freeman  v.  Munns, 
15  All.  Pr.,  468).  But  this  principle  is  not  to  be  carried  to 
such  an  unreasonable  extent  as  to  entirely  disregard  the  rights 
of  other  parties. 


428  ABBOTTS'  PRACTICE  REPORTS. 

^  Wright  v.  Rittei-man. 

After  a  careful  consideration  of  the  facts  submitted,  I  am  of 
opinion  that  the  sale  should  be  confirmed,  believing  that  the  in- 
terests of  all  the  parties  will  be  promoted  thereby.  A  judicial 
sale  should  not  be  set  aside  unless  a  very  clear  case  therefor  is 
presented.  Any  other  course  will  impair  confidence  in  such, 
sales,  and  have  a  tendency  to  deter  persons  from  attending  and 
purchasing  thereat. 

The  motion  to  confirm  the  sale  must  be  granted,  and  the  mo- 
tion to  set  aside  suchsale  denied. 


WRIGHT  against  RITTERMAN. 
New  York  Superior  Court;  General  TermjJune,  1866. 

ARRESTS. — FORMS  OF  ACTION. — INSOLVENT'S  DISCHARGE. — 
FORMER  ADJUDICATION. 

Where  the  plaintiff  in  an  action  on  contract  obtains  an  order  of  arrest,  on 
which  the  defendant  is  taken,  the  subsequent  exoneration  of  the  defend- 
ant from  imprisonment  for  debt,  under  the  provisions  of  2  Rev.  Stat.,  30, 
$  10,  precludes  the  plaintiff  from  procuring  a  second  arrest  in  an  action 
sounding  in  tort  but  founded  on  the  same  transaction  as  the  alleged  cause 
of  action  on  contract. 

Thus  a  fraudulent  purchaser  of  goods,  who  has  been  sued  on  the  contract 
of  sale,  and  arrested  in  the  action  on  the  ground  of  fraud  in  contracting 
the  debt,  cannot,  after  he  has  been  exonerated  for  imprisonment  for  debt, 
be  arrested  in  a  suit  for  damages  for  conversion  of  the  goods. 

Where  a  defendant  has  been  discharged  from  imprisonment  under  an  order 
of  arrest  by  due  process  of  law,  he  is  not  liable  to  be  arrested  and  impris- 
oned a  second  time  for  the  same  cause,  though  in  a  different  form  of 
action.* 

Appeal  from  an  order  vacating  an  order  of  arrest. 

The  action  was  brought  by  William  W.  Wright  and  others, 
against  Israel  Ritterman. 

The  facts  are  fully  stated  in  the  opinion  of  the  court. 
*  To  similar  effect  is  People  v.  Kelly,  post,  432. 


NEW   SERIES;  VOL.   I.  429 

Wright  v.  Ritterman. 

C.  Bainbridye  Smith,  for  the  plaintiffs,  appellants. 

Elbridge  T.  Gerry,  and  B.  F.  Sawyer,  for  the  defendant,  re- 
spondent. 

BY  THE  COURT.* — GARVIN,  J. — The  defendant,  on  the  26th 
of  September,  1865,  falsely  and  fraudulently  represented  to  the 
plaintiffs,  with  intent  to  cheat  and  defraud  them,  that  he  was 
worth  the  sum  of  ten  thousand  dollars,  and  on  the  faith  of  that 
representation,  they  sold  him  and  he  obtained  from  them  a  bill 
of  goodSj  amounting  to  nearly  four  thousand  dollars.  The 
plaintiffs,  on  the  14th  of  September,  1865,  commenced  an  ac- 
tion in  the  Supreme  Court,  for  goods  sold  and  delivered,  and 
obtained  an  order  for  the  arrest  of  the  defendant,  whereon  he 
was  to  be  held  to  bail  in  the  sum  of  four  thousand  dollars. 
Upon  this  order  he  was  arrested  and  imprisoned.  The  defend- 
ant made  and  served  his  answer  on  the  14th  of  December, 
1865,  containing  a  general  denial  of  the  plaintiffs'  complaint. 

The  action  in  the  Supreme  Court  is  still  pending.  Being 
imprisoned  and  confined  under  and  by  virtue  of  the  aforesaid 
order  of  arrest,  the  defendant  applied  to  his  Honor  the  City 
Judge,  by  petition,  for  exoneration  of  his  person  from  imprison- 
ment, and  on  the  14th  of  February,  1866,  he  was  released  and 
discharged,  under  the  provisions  of  article  Y.,  title  I.,  part  II., 
ch.  5  of  the  Revised  Statutes. 

After  his  release  and  discharge,  and  on  the  same  day,  an 
action  was  commenced  in  this  court  for  fraudulently  convert- 
ing the  plaintiffs'  goods,  wherein  an  order  of  arrest  was  issued 
and  the  defendant  thereupon  arrested  and  re-imprisoned,  it 
being  for  the  same  transaction  for  which  an  action* upon  con- 
tract was  brought  in  the  Supreme  Court,  the  action  in  this 
court  being  for  a  tort. 

A.  motion  was  made  to  vacate  the  order  of  arrest  before  a 
justice  of  this  court,  and  granted  upon  the  ground  that  pend- 
ing an  action  upon  contract  for  goods  sold  and  delivered,  no 
action  can  be  maintained  for  the  conversion  of  the  same  goods. 
The  plaintiffs  appealed. 

It  is  contended  on  the  part  of  the  respondents,  that  the 
pendency  of  the  suit  in  the  Supreme  Court  establishes  that 

*  Present  ROBERTSON,  Ck  J.,  and  MONELL  and  GAETIN,  JJ. 


430  ABBOTTS'  PKACTICE  EEPOETS. 

Wright  v.  Ritterman. 

even  if  the  debt  was  fraudulently  contracted,  the  plaintiffs,  by 
bringing  that  suit  in  the  Supreme  Court,  have  affirmed  the 
contract,  and  should  be  held  to  abide  by  that,  as  an  election 
of  their  remedy,  and  not  be  allowed  to  bring  an  action  for  the 
conversion  of  the  goods. 

If  the  first  action  had  proceeded  to  judgment,  there  can  be 
no  doubt  that  the  plaintiffs'  cause  of  action  would  have  been 
gone  forever,  both  upon  contract  and  in  tort ;  but  until  judg- 
ment it  is  quite  clear  that  if  the  defendant  pleaded  the  pen- 
dency of  the  former  suit  for  the  same  cause-  of  action,  the 
plaintiffs  could  reply  a  discontinuance  of  such  former  suit, 
which  would  be  a  good  replication  (Averill  v.  Patterson,  10 
N.  T.  [6  Sdd.],  501,  502).  Until  judgment,  the  plea  is  to  the 
form  of  the  remedy,  in  abatement  of  the  action,  but  after  judg- 
ment it  is  in  bar  to  the  right  of  recovery  (Nichols  v.  Mason,  21 
Wend.,  339). 

In  either  of  these  forms  of  action  the  defendant  could  be 
arrested  at  the  commencement  of  the  suit,  and  if  judgment 
was  recovered  against  him,  imprisoned  upon  the  execution. 

Thus,  as  a  matter  of  interest  to  the  defendant,  it  could  make 
no  difference  which  form  of  action  was  pursued  by  the  plain- 
tiffs in  the  first  instance.  Upon  the  facts  disclosed  in  this  case 
fhe  plaintiffs  had  two  remedies.  An  adjudication  upon  either, 
either  for  or  against  the  plaintiffs,  would  have  been  a  bar  to 
the  other;  but  until  such  adjudication,  I  see  no  reason,  on 
principle  or  authority,  which  would  preclude  a  discontinuance 
of  the  first  action  and  a  resort  to  the  second  (Bank  of  Beloit  v 
Beale,  7  Bosw.,  611). 

It  is,  however,  quite  another  question,  whether  if  a  party 
hold  the  defendant  to  bail,  by  order  in  an  action  upon  con- 
tract, upon  which  he  is  arrested,  imprisoned,  and  is  exonerated 
by  due  course  of  law  from  such  imprisonment,  he  can  pursue 
the  same  course  of  arrest  and  imprisonment  in  the  second  suit  • 
especially  where  the  statute  declares,  that  the  person  of  such 
insolvent  shall  forever  thereafter  be  exempted  from  imprison- 
ment, for  any  debt  due  at  the  time  of  making  such  assignment, 
or  contracted  for  before  that  time  (2  Rev.  Stat.  30,  §  10). 

This  claim  was  a  debt,  so  treated  by  the  plaintiffs  in  the 
first  action  (though  as  it  is  alleged,  fraudulently  contracted), 
therefore  falling  directly  within  the  provisions  of  article  V.y 
ch.  5,  of  2  Eev.  Stat.,  30,  §  10. 


NEW  SERIES  ;  VOL.  I.  431 

"Wright  v.  Ritterman. 

This  is  a  proceeding  for  the  benefit  of  an  insolvent  debtor — 
not  an  insolvent  imprisoned  on  execution  in  civil  causes,  but 
the  case  of  an  insolvent  debtor  imprisoned  in  a  suit  or  pro- 
ceeding, founded  upon  a  contract  or  liability  due  at  the 
time  of  his  assignment  (2  Rev.  Stat.,  31,  §  11). 

The  plaintiffs  say  this  was  a  debt ;  bring  their  suit  upon  the 
contract  for  goods  sold  and  delivered  ;  obtain  an  order  of  arrest 
upon  the  ground  that  the  debt  was  fraudulently  contracted, 
and  instead  of  going  for  a  conversion  of  the  goods,  insist  upon 
a  recovery  upon  the  contract. 

We  think  the  defendant  was  properly  discharged  from  im- 
prisonment under  the  order  of  arrest,  by  the  city  judge,  and 
that  the  case  falls  directly  within  the  statute.  But  if  the  dis- 
charge is  void,  then  the  order  of  arrest  in  this  court  clearly 
should  have  been  vacated,  for  the  reason  that  the  first  order 
remained  in  full  force,  and  a  defendant  should  not  be  impris- 
oned, or  held  under  two  orders  of  arrest  at  the  same  time,  and 
founded  upon  the  same  transaction  or  cause  of  action.  Both 
these  actions  are  for  the  same  cause,  though  the  forms  of  action 
are  different. 

Assuming  the  discharge  to  be  valid,  can  the  defendant  be 
arrested  the  second  time  for  the  same  cause  of  action  ? 

The  general  rule  is  that  a  man  should  not  be  arrested  a 
second  time  for  the  same  cause  of  action  (Wells  v.  Guerney,  8 
Barn.  &  (?.,  769),  although  the  second  arrest  be  in  a  different 
form  of  action,  provided  it  be  on  the  same  cause  (3  East,  309  ; 
8  Taunt.,  24;  3  D.  &  K,  189). 

It  is  true  it  has  been  held,  that  if  the  plaintiff's  attorney  has 
misconceived  his  form  of  action,  he  may  discontinue,  and  hold 
the  defendant  in  another  action,  for  the  same  cause  (Low  v. 
Little,  17  Johns.,  34:7) ;  provided  the  discontinuance  did  not 
arise  from  any  laches  on  the  part  of  the  plaintiff,  and  the 
second  arrest  does  not  appear  to  be  vexatious.  But  that  is 
not  this  case.  It  is  a  legal  maxim  that "  No  man  shall  be  twice 
arrested  for  the  same  cause."  This  applies  to  the  same  juris- 
diction, and  is  conceded  to  be  the  general  rule. 

We  think  it  a  safe  rule,  and  one  that  is  reasonable  and  easy 
of  application,  that  where  a  defendant  has  been  discharged 
from  imprisonment  under  an  order  of  arrest,  by  due  course  of  . 
law,  he  should  not  be  re-arrested,  and  imprisoned  a  second  time 
for  the  same  cause,  though  in  a  different  form  of  action.  The 
order  made  at  special  term  should  be  affirmed,  with  costs. 


432  ABBOTTS'  PRACTICE  REPORTS. 

The  People  ex  rel.  Ritterman  v.  Kelly. 


THE  PEOPLE  on  rel.  RITTERMAN  against  KELLY. 

Before  Hon.  A.  D.  fiussel,  City  Judge  of  the  City  of  New 
York;  August,  1866. 

HABEAS  CORPUS. — ARREST. — DISCHARGE  FROM  IMPRISONMENT. — 
FORMER  ADJUDICATION. 

After  a  defendant,  arrested  in  a  civil  action,  has  been  discharged  from  im- 
prisonment under  the  statutes  relative  to  insolvents,  the  plaintiffs  cannot, 
by  merely  changing  the  form  of  action  to  a  suit  for  tort  instead  of  a  suit  on 
,  contract,  procure  the  arrest  of  the  defendant  in  another  court  for  the  same 
cause  for  the  purpose  of  evading  the  force  and  effect  of  his  discharge,  and 
thereby  defeating  the  clear  intendment  of  the  statute. 

Where  the  gist  of  the  transaction  is  a  tort,  if  it  arises  out  of  a  contract,  the 
plaintiff  may  declare  in  tort  or  contract,  at  his  election;  but,  having  made 
his  election,  is  bound  by  it. 

It  is  a  legal  maxim  that  no  man  shall  be  twice  arrested  for  the  same  cause. 

When  a  defendant  has  been  discharged  from  imprisonment  under  an  order 
of  arrest,  by  due  course  of  law,  he  should  not  be  re-arrested  and  impris- 
oned a  second  time,  for  the  same  cause,  though  in  a  different  form  of 
action. 

Where  the  return  to  a  habeas  corpus  shows  a  detainer  under  legal  process, 
the  only  proper  points  for  examination  are  the  existence,  validity,  and 
present  legal  force  of  the  process  •  except  where,  in  commitments  for 
criminal  matters,  the  court  or  officer  hearing  the  habeas  corpus  is  invested 
•with  a  revisory  or  corrective  jurisdiction  over  the  court  or  officer  com- 
manding the  imprisonment,  and  with  a  jurisdiction  also  over  the  offence,  or 
subject  matter  of  the  commitment ;  in  which  case  the  facts  constituting 
the  grounds  of  the  committment  may  be  reviewed. 

The  habeas  corpus  cannot  have  the  force  and  operation  of  a  writ  of  error,  or 
a  certiorari;  nor  is  it  designed  as  a  substitute  for  either.  It  does  not,  like 
them,  deal  with  errors  or  irregularities,  which  render  a  proceeding  void- 
able only ;  but  with  those  radical  defects  Avhich  render  it  absolutely  void. 

Illegality  signifies  that  which  is  contrary  to  the  principles  of  law,  and  de 
notes  a  "  complete  defect  in  the  proceedings." 

Hence,  where  a  defendant  has  been  arrested  a  second  time,  after  a  discharge 
and  exoneration  from  imprisonment  for  the  same  cause  in  another  action,  he 
may  be  discharged  on  habeas  corpus,  notwithstanding  relief  might  be  had 
on  motion  in  the  court  from  which  the  process  was  issued. 

Relief  on  habeas  corpus  is  not  to  be  refused  in  a  proper  case  upon  the  ground 


NEW  SERIES;  YOT..  I.  433 

The  People  ex  rel.  Ritterman  v.  Kelly. 

that  upon  a  prior  writ,  issued  by  another  judge,  relief  has  been  refused, 
if  ifc  appears  upon  the  second  application  that  essentially  different  facts 
are  involved  from  those  which  were  presented  on  the  first  application. 

Habeas  corpus. 

The  writ  was  sued  out  on  the  relation  of  Israel  Ritterman,  im- 
prisoned at  the- suit  of  creditors,  against  John  Kelly,  sheriff  of 
the  city  arid  county  of  New  York. 

The  facts  of  the  case  are  stated  in  the  opinion. 

'  Elbridge  T.  Gerry,  for  the  relator. 

Levi  S.  Chatfield,  and  Titus  B.  Etdridgc,  for  the  creditors,   • 
opposed. 

RUSSEL,  CITY  J. — A  writ  of  habeas  corpus  was  allowed  by 
the  City  Judge,  directed  to  the  sheriff  of  the  city  and  county  of 
New  York,  commanding  him  to  have  the  body  of  Israel  Ritter- 
man, by  him  imprisoned  and  detained,  as  is  said,  together  with 
the  time  and  cause  of  such  imprisonment  and  detention,  before 
the  said  City  Judge,  on  the  second  day  of  July,  one  thousand 
eight  hundre'd  and  sixty-six,  at  three  o'clock,  to  do  and  receive 
what'  shall  then  and  there  be  considered.  To  which  writ,  the 
said  sheriff,  on  the  return  day,  made  return  that  he  held  the  re- 
lator under  and  by  virtue  of  several  orders  of  arrest,  naming 
some  thirteen  different  suits  instituted  against  him,  on  which 
orders  of  arrest  were  allowed.  The  said  City  Judge,  on  the  re- 
turn of  said  sheriff,  directed  that  a  notiqe  of  eight  days  be  given 
to  the  attornies  for  the  plaintiff  in  each  of  said  actions,  that  a 
habeas  corpus  had  been  issued,  and  that  the  hearing  on  the  re- 
turn of  said  writ  would  take  place  before  said  City  Judge,  at  his 
chambers,  No.  82  Nassau  street,  on  the  llth  day  of  July  inst, 
at  three  o'clock  p.  M.  of  that  day,  at  which  time  the  attornies  for 
the  respective  creditors  appeared.  And  the  attorney  for  the 
said  relator  filed  his  traverse  to  the  return  of  said  sheriff,  and 
denied  that  he  was  held  by  the  said  sheriff  by  virtue  of  any 
writ,  and  that  he  was  and  is  legally  imprisoned  and  detained  by 
said  sheriff;  but  alleged  : 

"  That  prior  to  the  fourteenth  day  of  February,  one  thousand 
eight  hundred  and  sixty-six,  he  was  arrested  by  said  sheriff  by 
color  of  certain  orders  of  arrest  issued  against  him  by  the  courts 
N.  S.— VOL.  I.— 28. 


434:  ABBOTTS'  PRACTICE  REPOETS. 

The  People  ex  rel.  Ritterman  v.  Kelly. 

in  the  said  return  mentioned,  in  certain  actions  therein  brought, 
the  titles  of  which  and  the  times  of  which  arrests  are  set  forth 
in  said  return.  That  each  and  all  of  said  actions  were  brought 
to  recover  amounts  claimed  to  be  due  the  respective  plaintiffs  for 
the  non-payment  of  certain  debts  arising  upon  contract  in  the 
purchase  by  him  of  certain  goods,  and  each  and  all  of  said  orders 
of  arrest  were  granted  on  the  ground  of  alleged  fraud  in  his  ob- 
taining such  goods  and  in  contracting  such  debts.  That  whilst 
said  action  was  pending,  said  Ritterman  made  application  to  the 
City  Judge  for  his  discharge  under  the  non-imprisonment  act, 
and  such  proceedings  were  thereupon  had  before  said  City 
Judge,  that  on  the  fourteenth  day  of  February  one  thousand 
eight  hundred  and  sixty-six,  he  granted  to  said  insolvent  Ritter- 
man a  discharge,  declaring  '  that  the  person  of  the  said  insolvent 
should  forever  thereafter  be  exempted  from  arrest  or  imprison- 
ment by  reason  of  any  debts  due  or  other  liabilities  existing  at 
the  time  of  his  making  said  assignment,  or  contracted  for  before 
that  time,  though  payable  afterwards,  and  by  reason  of  any  lia- 
bilities incurred  "by  said  insolvent  by  making  or  endorsing  any 
promissory  note  or  bill  of  exchange,  or  incurred  by  said  insol- 
vent in  consequence  of  payment  by  any  party  to  such  note  or. 
bill'of  the  whole  or  any  part  of  the  money  secured  thereby, 
whether  said  payment  be  made  prior  or  subsequent  to  the  execu- 
tion of  said  assignment,  and  if  now  imprisoned,  that  he  be  forth- 
with discharged  and  released  from  the  same.'  That  on  the  day 
aforesaid,  an  authenticated  copy  of  said  discharge  was  served  on 
said  sheriff,  and  he  was  required  to  release  and  discharge  the 
said  Ritterman  from  said  .custody  and  imprisonment,  but  declined 
and  refused  so  to  do.  That  on  the  2Sth  day  of  'February,,  one 
thousand  eight  hundred  and  sixty-six,  the  attorney  for  one  Myers 
procured  another  order  of  arrest  against  said  Ritterman  (which 
is  the  supposed  writ  referred  to  as  of  that  date  in  said  return), 
whilst  tiie  first  order  of  arrest  was  still  pending  and  unrevoked, 
and  before  any  discontinuance.  That  such  second  order  of  arrest 
was  granted  in  a  second  action  by  the  same  plaintiffs  against  the 
said  Ritterman,  in  which,  in  order  to  evade  the  legal  effect  of 
said  discharge,  they  based  their  alleged  right  to  recover  upon 
the  ground  of  alleged  tortious  conversion  of  the  property  sold,  in- 
stead of  upon  that  of  non-performance  of  contract  to  pay  for  such 
property,  which  was  the  ground  of  claim  or  demand  set  forth  in 
their  first  suit.  That  other  creditors  pursued  the  same  course, 


NEW  SERIES  ;  VOL.  I.  435 

The  People  ex  rel.  Ritterman  v.  Kelly. 

and  the  tortious  conversion  of  said  property  was  alleged  to  have 
accrued  prior  to  the  said  14th  day  of  February,  one  thousand 
eight  hundred  and  sixty-six." 

The  attorneys  for  the  respective  creditors  in  the  several  suits 
referred  to,  joined  issue  on  said  traverse ;  and  the  attorney  for 
the  relator  proved  all  the  allegations  contained  in  said  traverse. 
The  attornies  for  the  plaintiffs  in  the  several  suits,  referred  to 
then  proved  before  said  City  Judge,  that  a  writ  of  habeas  corpus 
was  allowed  by  Justice  BARNARD  and  heard  before  Mr.  Justice 
CLERKE  ;  and  he  directed — "  That  the  prisoner  be  remanded, 
and  the  writ  discharged."  And  also,  that  another  writ  of  habeas 
corpus  was  allowed  by  Justice  MONELL,  for  the  reason  that  the 
matter  had  not  been  decided  by  Mr.  Justice  CLERKE,  who,  after 
the  .allowance,  rendered  his  decision,  whereupon  Justice  MONELL 
remanded  the  prisoner  and  discharged  the  writ.  And  it  was 
also  proven,  that  the  actions  and  orders  of  arrest,  on  which  the 
relator  was  held  by  said  sheriff,  at  the  time  of  his  discharge, 
were  discontinued,  and  subsequently  actions  of  tort  (for  the  same 
cause),  were  commenced  against  him,  in  which  he  is  now  impris- 
oned by  several  orders  of  arrest.  But  it  did  not  appear  before 
me,  whether  either  of  the  applications  were  heard  on  the  merits, 
or  on  what  ground  the  prisoner  was  remanded  and  the  writ  dis- 
charged. The  pleadings  in  the  several  suits  were  before  me, 
and  submitted,  together  with  various  opinions  rendered  by  dif- 
ferent judges  in  the  Supreme  and  Superior  Courts  of  this  city, 
on  motions  to  reduce  the  bail,  or  discharge  the  said  relator  from 
arrest  in  said  suits,  in  consequence  of  said  discharge  by  the  City 
Judge. 

There  can  be  no  doubt  that  the  discharge  granted  by  the  City 
Judge  to  the  relator,  under  the  act  exonerating  his  person  from 
imprisonment,  released  and  discharged  him,  from  all  the  orders 
of. arrest,  under  which  he  was  then  held  by  said  sheriff;  the  act 
declaring : — "  That  the  person  of  the  said  insolvent  shall  forever 
thereafter  be  exempted  from  arrest  and  imprisonment,  by  reason 
of  any  debts  due,  or  other  liabilities  existing  at  the  time  of  his 
making  said  assignment,  or  contracted  for  before  that  time, 
though  payable  after,  &c.,  &c. ;  and  if  then  imprisoned,  that  he 
be  forthwith  discharged  and  released  from  the  SOTIC."  The 
plaintiffs  in  the  different  actions,  prior  to  the  relator's  discharge, 
having  made  their  election  of  actions,  by  proceeding  on  con- 
tract, though  founded  in  fraud,  and  he  being,  by  the  said  dis- 


436  ABBOTTS'  PRACTICE  REPORTS. 

The  People  ex  rel.  Kitterman  v.  Kelly. 

charge,  released  from  imprisonment  on  the  same,  cannot,  by 
changing  the  form  of  action  (provided  it  be  for  the  same  cause), 
re-arrest  the  said  relator.  It  has  been  held  that,  "  an  insolvent 
discharge  operates  as  well  upon  debts  arising  ex  delicto  as  upon 
those  ex  contfactu."  (Luther  v.  Deyo,  19  Wend.)  629  ;  Deyo'  v. 
Yan  Yalkenburgh,  5  Hill.,  242.)  The  non-imprisonment  act 
contemplated  no  such  artificial  distinction  between  the  actions 
of  contract  and  tort.  Whatever  the  law  would  compel  the  in- 
solvent to  pay,  whether  certain  or  not,  was  covered  by  and  in- 
cluded in  his  discharge  (3  Rev.  Stat.  [5  ed.~],  104 ;  §  10 ; 
Andreas  v.  Murray,  2  Abb.  Pr.,  8, 14  ;  Newell  v.  The.  People, 
7  JV.  T.  [3  Seld.~],  9).  If,  therefore,  the  liability  existed 
prior  to  judgment,  in  an  unliquidated  form  as  to  amount,  it  is 
covered  by  the  express  language  of  the  statute,  whigh,  in  exon- 
erating the  insolvent  from  imprisonment,  draws  no  distinction  as 
to  time,  whether  before  or  after  judgment  (2  JRev./Stat.  \5th  ed.~], 
104;  §10).  If  then  the  defendant  was  released,  by  virtue  of 
his  discharge  from  imprisonment  in  the  first  actions,  it  was 
clearly  wrong  and  illegal  for  the  plaintiffs  to  change  merely  the 
form  of  action,  and  in  another  court  obtain  orders  of  arrest,  for 
the  purpose  of  evading  the 'force  and  effect  of  his  discharge,  and 
thereby  defeating  the  clear  intendment  of  the  statute  enacted 
for  the  relief  of  the  unfortunate  debtor.  "Where  the  gist  of  the 
transaction  is  a  tort,  if  it  arises  out  of  a  contract,  the  plaintiff 
may  declare  in  tort  or  contract,  at  his  election ;  and,  having 
made  his  election,  is  bound  by  it'(Stoyell  v.  JVescott,  2  Day, 
422,  531 ;  Yaise  if.  Smith,  6  C ranch  S. '  Gi.,  226). 

Another  question  presents  itself  under  this  branch  of  the  case 
— whether  after  a  party  has  been  once  arrested  and  held  to  bail, 
he  can  for  the  same  cause  of  action  be  a  second  time  arrested. 
This  question  was  before  the  general  term  of  the  Superior  Court, 
in  the  case  of  "Wright  v.  Ritterman,  on  an  appeal  from  tjie 
special  term,  and  at  the  last  June  term  of  said  court  it  was  de- 
cided in  favor  of  the  relator  herein* — Justice  GAKVEST,  in  a  very 
able  opinion,  using  this  language — "  It  is  a  legal  maxim,  that  no 
"  man  shall  be  twice  arrested  for  the  same  cause.  This  applies  ' 
"  to  the  same  jurisdiction,  and  is  conceded  to  be  the  general 
"  rule,  we  think  it  a  safe  rule,  and  one  that  is  reasonable  and 
"  easy  of  application,  that  when  a  defendant  has  been  discharged 

*  The  decision  is  reported,  ante,  428. 


NEW  SEKIES;  VOL.  I.  437 

Tto  People  ex  rel.  Ritterman  v.  Kelly. 

."from  imprisonment  under  an  order  of  arrest,  by  due  course  of 
"  law,  he  could  not  be  re-arrested  and  imprisoned  a  second  time, 
"  for  the  same  cause,  though  in  a  different  form  of  action." 

It  lias  been  urged  by  the  counsel  for  the  creditors  with,  great 
force,  "  That  whenever  it  appears  by  the  return  to  a  habeas 
corp^ls  that  the  petitioner  is  held  under  the  process  of  a  court, 
having  jurisdiction  of  Hie  person  and  of  the  subject  matter,  he 
will  not  be  discharged;  and  especially  not,  by  any  court, other 
than  that  from  which  the  process  issued." 

This  proposition  to  a  certain  extent  is  true  ;  but  I  under- 
stand the  rule  of  law  to  be  this  :  Where  the  return  to  a  habeas 
corpus  shows  a  detainer  under  legal  process,  the  only  proper 
points  for  examination  are,  the  existence,  validity  and  present 
legal  force  of  the  process;  except  where  in  commitments  for 
criminal  matters,  the  court  or  officer  hearing  the  habeas  corpus, 
is  invested  with  a  revisory  or  corrective  jurisdiction  over  the 
court  or  officer  commanding  the  imprisonment,'  and  with  a 
jurisdiction  also  over  the  offence- or  subject  matter  of  the  com- 
mitment ;  in  which  case  the  facts  constituting  the  grounds  of 
the  commitment  may  be  reviewed. 

The  habeas  corpus  cannot  have  the  force,  and  operation  of  a 
writ  of  error,  or  a  certiorari  /  nor  is  it  designed  a.s  a  substitute 
for  either.  It  does  not  like  them,  deal  with  errors  or  irregular- 
ities, which  render  a  proceeding  voidable  only  ;  but  with  those 
radical  defects,  which  render  it  absolutely  void.  A  proceed- 
ing defective  for  irregularity,  and  one  void  for  illegality,  may 
be  reversed  upon  error  or  certiorari ;  but  it  is  the  latter  defect 
only,  which  gives  authority  to  discharge  on  habeas  corpus. 
Illegality  signifies  that  which  is  contrary  to  the  principles  of 
law,  and  denotes  a  "  complete  defect  in  the  proceedings."  It 
is  a  rule  essential  to  the  efficient  administration  of  justice,  that 
where  a  court  is  invested  with  jurisdiction  over  the  subject 
matter  npon  which  it  assumes  to  ac*f,  and  regular!}'  obtains  juris- 
diction of  the  person,  it  becomes  its  right  and  duty  to  deter- 
mine every  question  which  may  arise  in  the  cause,  without 
interference  from  any  other  tribunal.  When  the  habeas  cor- 
pus interferes  with  another  competent  and  acting  jurisdiction,  it 
will  be  denied,  as  an  inappropriate  remedy;  for  it  was  never 
designed  to  be  used,  to  frustrate  or  interrupt  the  due  course 
of  justice,  nor  to  intermeddle  with  other  judicial  proceedings, 
while  a  read}'  redress  may  b'e  had,  by  application  to  the  tribu- 


438  ABBOTTS'  PRACTICE  REPORTS. 

The  People  ex  rel.  Ritterman  v.  Kqjly. 

nal  whose  action  may  be  the  subject  of  complaint.  Instances 
have  occurred  where  relief  has  been  granted  on  irregular  com- 
mitments, or  civil  process,  by  habeas  corpus,  notwithstanding 
it  might  have  been  obtained  on  motion  to  the  court  from  which 
it  issued  (Ex  parte  Beatty,  12  Wend.,  229  ;  James  v.  Kelly,  17 
Mas?.,  116 ;  Bank  of  U.  S.  v.  Jenkins,  18  Johns.,  305  ;  3  Mc- 
Lean, 226).  But  in  all  these  cases  the  power  to  interfere  was 
exercised  or  arrested  by  a  court,  not  only  superior  to  the  court 
or  officer  under  whose  process  the  imprisonment  was  claimed, 
but  having  by  its  constitution  appellate  jurisdiction  over  such 
.court  or  officer. 

The  second  orders  of  arrest  being  absolutely  void,  the  present 
application  is  a  proper  one  for  his  discharge,  and  is  in  accord- 
ance with  the  decisions  on  that  subject  (Matter  of  Baker,  11 
How.  Pr.,  418 ;  Gray's  Case,  11  Abb.  Pr.,  56  ;  3  Hill,  662, 
Appendix ;  Tlurd  on  Hob.  Corp.,  334). 

This  ca<e  having  been  brought  before  Justice  CLERKE,  on 
habeas  corpus,  and  he  having  "  remanded  the  prisoner  and  dis- 
charged "the  writ,"  can  another  habeas  corpus  issue,  and  would 
the  determination  of  Justice  CLERKE  be  res  arfjudicata  f  An 
estoppel  cannot  be  raised  by  proof  that  two  issues,  which  are 
on  their  face  different,  contain  a  fact  common  to  both,  which, 
having  been  ascertained  in  one,  should  not  be  controverted  in 
the  other  (Mnrry  v.  Harris,  2  Jo'tns.,  24  ;  Rogers  v.  Alevater, 
4  Day,  431 ;  4  Cow.,  476 ;  1  Esp.,  43).  It  did  not  appear  what 
points  were  before  Justice  CLERKE,  or  on  what  grounds  the 
writ  was  dismissed  ;  but  it  was  shown  on  this  application  that 
a  different  state  of  facts  existed,  and  which  could  not  have 
been  passed  upon  at  that  time  ;  consequently  the  plea  of  res 
adjudicata  does  not  apply,  this  case  coming  directly  under  the 
decisions  of  the  People  v.  Mercein  (3  Hill,  399) ;  Sweet  v. 
Tut  tie  (14  N.  Y.  [4  Kern.~],  465) ;  Bently  v.  Gardiner  (15  Abb. 
Pr.,  482) ;  Loring  v.  U.  S.  V.  G.  P.  Co*  (30  Barb.,  644) ;  Malam 
v.  Simpson  (12  Abb.  Pr.,  225). 

The  relator  is,  therefore,  discharged  from  imprisonment,  on 
all  the  orders  of  arrest,  under  which  he  is  held  by  the  sheriff 
of  the  city  and  county  of  New  York. 


NEW  SERIES  ;   VOL.  I.  439 

Arrieta,  v.  Morrissey. 


ARRIETA  against  MORRISSEY. 
New  York  Common  Picas;  General  Term,  July,  1866. 

PLEADING. — COMPLAINT  FOB  MONEY  LOST  AT  PLAY. — DEFINITE* 
NESS  AND  CERTAINTY. — APPEALABLE  OKDEE. 

In  an  action  to  recover  back  money  lost  at  play,  the  complaint  i»  obnoxious 
to  a  motion  that  it  be  made  more  definite  a.nd  certain,  unless  it  states  the 
facts  necessary  to  show  clearly  under  which  of  the  several  sections  of  the 
statute  of  betting  and  gaming  the  action  was  brought. 

Where  there  are  several  sections  of  a  statute  creating  a  cause  of  action,  dif- 
fering in  their  legal  effect  and  in  the  -remedies  provided,  and  the  com- 
plaint in  an  action  under  the  statute  is  so  dro.wn  that  it  may  include  claims 
under  more  than  one  provision,  the  plaintiff  may  be  required,  on  motion, 
to  make  it  more  definite  and  certain  in  this  respect. 

In  an  action  to  recover  money  lost  at  play,  since  the  statute  gives  the  ac- 
tion only  for  losses  exceeding  twenty-five  dollars  at  one  sitting,  and  re- 
quires it  to  be  brought  within  three  months  after  payment,  the  defendant 
is  entitled  to  require  the  plaintiff  to  specify  in  his  complaint  the  amount 
lost  at  each  sitting,  and  the  times  of  payment.  It  is  not  sufficient  that 
these  facts  might  be  called  forth  by  requiring  a  bill  of  particulars.  (Per 
CARDOZO,  J.) 

An  action  to  recover  back  money  lost  at  play,  is  not  an  action  for  a  penalty 
or  forfeiture,  within  the  meaning  of  the  provision  of  the  Kevised  Statutes 
which  gives  a  short  mode  of  pleading  in  such  cases. 

An  appeal  from  an  order  refusing  to  require  the  complaint  to  be  made  more 
definite  and  certain,  sustained,  and  the  order  reversed. 

Appeal  from  an  order  made  at  a  special  term,  denying  a  mo- 
tion to  make  the  complaint  more  definite  and  certain,  under 
section  160  of  the  Code  of  Procedure. 

The  complaint  contained  two  counts.  In  the  first,  it  was 
alleged  that  during  the  months  of  August  and  September,  1863, 
the  defendant,  John  Morrissey,  kept  a  gambling  establishment 
at  Saratoga  Springs,  and  that  during  such  times  the  plaintiff, 
Pablo  de  Arrieta,  at  such  establishment,  made  certain  wagera 
and  bots,  which  were  made  to  depend  upon  a  game  of  lot  or 


4:4:0      ABBOTTS'  PEACTICE  REPORTS. 

Arrieta  v.  Morrissey. 

chance,  commonly  called  "  faro,"  which  game  of  lot  or  chance, 
was  under  the  management  and  direction,  of  the  defendant,  at 
such  establishment.  That  the  wagers  and  bets  so  made  were 
lost  by  the  plaintiff  while  betting  on  such  game,  and  were  won 
by  the  defendant,  and  amounted  in  the  aggregate  to  nine 
thousand  dollars,  which  sum  was  paid  and  delivered  to  the  de- 
fendant, who,  although  requested,  refused  to  return  it  to  the 
plaintiff. 

The  second  count,  under  -similar  allegations,  asserted  the 
losing  by  the  plaintiff  and  winning  by  the  defendant,  of  fourteen 
thousand  dollars  during-  the  months  of  September  and  October, 
1863,  at  a  gambling"  house  alleged  to  have  been  kept  by  the 
defendant  in  New  York  city. 

Upon  these  counts  and  allegations  the  plaintiff  prayed  judg- 
ment for  the  return  of  the  sums  mentioned,  according  to  the 
statute  in  such  case  made  and  provided,  with  costs.  • 

The  plaintiff  moved  at  special  term,  before  Judge  DALY,  that 
the  complaint  Be  made  more  definite  and  certain,  so  as  to  show 
the  precise  nature  of  the  charges  against  the  defendant,  and 
particularly  so  as  to  set  forth  the  precise  days  on  which  the 
plaintiff  claims  to  have  lost  any  money  by  gambling,  with  ref- 
erence to  the  days  of  the  month,  and  the  amounts  claimed  to 
have  been  lost  on  each  occasion,  or  for  other  relief. 

George  Oicen,  for  the  motion. — I.  The  complaint  is  indefinite 
and  uncertain,  (a.)  "Faro"  is  a  technical  term.  Whether 
wage/s  or  bets  made  to  depend  upon  it  come  within  §§  9  or  14 
of  the  statute  against  betting  and  gaming  (2  Rev.  StaL  [5th  ed.~], 
925  ;  §  14),  cannot  be  ascertained  without  a  clearer  statement 
of  its  operations.  The  terms  of  "gambling  establishment," 
"game,"  "lost,"  "won,"  and  "paid  and  delivered,"  would  indi- 
cate losing  at  play,  while  the  terms  "  wagers  and  bets  "  would 
indicate  a  loss  depending  upon  the  result  of  a  play.  It  is,  there- 
fore, impossible  to  tell  whether  the  cause  of  acwon  is  undBr  §  9 
or  14  of  the  statute.  (£.)  If  the  cause  of  action  is  under  §  14,  it 
does  not  appear  whether  the  moneys  were  lost  at  one  or  more 
sittings  (2  Jtev.  Stat.  \$th  ed.~\,  92-5  ;  §  14).  (c.)  Nor  does  it 
specify  the  times  when,  and  the  amounts  lost  on  each  occasion. 
This  is  necessary  for  two  reasons :  1st,  to  prevent  surprise  to  the 
defendant,  and,  2nd,  because  the  cause  of  action  is  founded  on  the 
statute  (Cole  v.  Smith,  4  Jo/nis.,  193).  (d.)  It  cannot  be  ascer' 


NEW  SERIES  ;  VOL.  "I  441 

Arrieta  v.  Morrissey. 

tained  from  the  complaint  what  items  tlie  plaintiff  \^1  en- 
deavor to  prove  on  the  trial.  To  mslke  this  apparendjfc  the 
party  and  the  court,  is  the  object  of  §  1  GO  of  the  Code  (Decker 
v.  Mathews  12  N.  T.  [2  Kern.'],  321).  (e.)  Even  if  this  action 
was  on  a  particular  statute,  it  would  not  be  definite,  as  it  claims 
a  general  sum  for  a  number  of  items  not  clearly  defined  as  a 
single  cause  of  action  (Walker  v.  Bdkin,  12  How.  Pr.,  30 ; 
Forsyth  v.  Edmondson,  11  Id.,  408 ;  Clark  v.  Farley,  3  Duer, 
645).* 

II.  The  precise  nature  of  the  charge  is  not  apparent.  There 
can  be  but  one  meaning  to  the  word  precise  ;  it  requires  times, 
places,  amounts,  to  be  distinctly  pointed  out,  to  meet  the  under- 
standing of  the  adverse  party. 

III.*  It  is  submitted  that  no  matter  how.  clear  a  pleading  may 
seem  on  a  first  reading,  yet  if  its  meaning  upon  reflection  is 
doubtful,  or  the  adverse  party  cannot  clearly  understand  it,  the 
office  and  intent  of  §  160  of  the  Code  is  to  vest  the  court  with  a 
discretion  to  order  it  to  be  made  more  definite  and  certain,  so 
it  can  be  safely  answered. 

Francis  H.  DyTcers,  opposed. 

The  motion  was  denied  by  the  judge  at  special. term  upon  the 
argument,  upon  the  ground  that  by  §  158  of  the  Code,  an  order 
for  a  bill  of  particulars  was  the  proper  remedy,  if  one  was  not 
furnished  on  demand ;  and  from  the  order  entered,  an  appeal 
was  now  taken  to  the  general  term. 

John  Graham  and  George  Owen,  for  the  appellant. — I.  By 
§  142  of  the  Code,  the  complaint  shall  contain  (among  other 
things),  "  a  plain  and  concise  statement  of  the  facts  constituting 
"  a  cause  of  action,  without  unnecessary  repetition." 

If  this  section  stood  alone,  Ike  complaint  could  only  contain  a 
single  cause  of  action.  The  article  "  a  "  would  have  that  effect. 
By  §  167,  however,  "  the  plaintiff  may  unite  in  the  same  com- 
plaint several  causes  of  action,"  but  they  "  must  be  separately 
stated."  The  reason  of  that  is  obvious.  The  defences  to  each 
cause  of  action  may  be  distinct — one.  may  be  proper  to  be  tested 
on  a  demurrer — another  may  be  the  subject  of  an  issue,  upon  a 
denial — another  may  be,  that  the  cause  of  action  has  been  re- 
leased, or  satisfied  by  payment.  The  policy  of  all  pleadings  is, 


442  ABBOTTS'  PKACTICE  KEPOKTS. 

Arrieta  v.  Morrissey. 

to  hare  the  cause  of  action  or  defence  spread  upon  the   record, 
so  thax  a  demurrer  can  be  interposed  if  it  is  thought  advisable. 

II.  By  the  statutes  of  this  State  it  is  provided  that  "  the  sum 
or  value  of  twenty-five  dollars  or  upwards,"  lost  at  "  any  time  or 
sitting,"  may  be  recovered  within  three  calendar  months  from 
payment  or  delivery  (2  Rev.  Stat.,  662,  663,  §  14).  Where  the 
right  to  recover  builds  itiftlf  upon  this  statute,  the  elements  of 
the  statutory  cause  of  action  should  appear  on  the  face  of  thp 
complaint.  But  for  the  statute  there  could  be  no  recovery  at  all, 
and  the  sum  or  value  of  twenty-five  dollars  and  upwards  must 
be  lost  or  delivered  at  one  time  or  sitting,  to  constitute  a  cause 
of  action.  These  causes  of  action,  where  they  are  more  than 
one,  can  be  included  in  the  same  complaint,  but,  by  §  167  of  the 
Code,  they  must  be  stated  separately,  i.  e.,  there  must-  be  as 
many  counts  as  there  are  causes  of  action.  These  principles  are 
illustrated  and  sustained  in  Cole  v.  Smith  (4  Johns.,  193).  As 
will  be  seen  by  that  case,  the  former  statute  on  this  subject  pre- 
scribed the  form  of  action  for  the  loser,  but  not  the  mfqrmer. 

ILL  We  do  not  combat  the  doctrine  that,  where  many  items 
of  property  are  the  subject  of  a  single  sale,  the  price-  or  aggre- 
gate amount  can  be  alleged,  as  the  debt,  in  a  single  count,  and 
that  a  bill  of  particulars  is  the  proper  course,  if  the  defendant 
wishes  more  light.  That  is  analagous  to  a  loser  at  play,  recov- 
ering, under  one  count,  the  aggregate  of  all  his  losings  at  any 
time,  or  any  one  sitting.  While  he  can  make  one  amount  of  all 
the  losings  at  any  one  time  or  sitting,  and  so  allege  it  in  his 
complaint,  he  cannot  aggregate  the  losings  of  any  number  of  in- 
dependent sittings,  and  include  it  in  a  single  count.  The  aggre- 
gate of  all  the  items  of  property  sold  at  one  time,  and  the  aggre- 
gate of  all  the  monies  lost  at  one  sitting,  constitute  and  repre- 
sent a  single  transaction,  and  so,  a  single  cause  of  action. 

IV.  lUe  mistake  at  special  term  arose  from  supposing  that 
the  words  at  the  close  of  §  158  of  the  Code,  "  the  court  may  in 
"  all  cases  order  a  bill -of  particulars  of  the  claim  of  either  party 
"  to  be  furnished,"  were  intended  for  a  case  like  the  present. 

These  words  were  not  designed  to  abolish  pleadings,  but  to 
give  the  court  a  furthe'r  power  over  -them ;  that  is,  where  the 
pleadings  are  as  specific  as  pleadings  ought  to  be,  in  setting 
forth  a  claim,  the  court  can  require  them  to  be  made  more 
specific  still,  by  a  bill  of  particulars. 

Y.  A  motion  to  make  the  complaint  more  definite  and  certain 


NEW  SEETES  ;  VOL.   I.  443 

Arrieta  v.  Morrissey.  f 

was  the  proper  remedy  for  the  defendant,  as  will  appear  by  the 
following  authorities  (Blanchard  v.  Strait,  8  How.  Pr.,  85 ;  For- 
eyth  v.  Edminston,  11  Id.,  408;  "Waller  v.  Kaskin,  12  Id.,  30; 
Clark  v.  Farley,  3  Duer,  645 ;  Harsen  v.  Bayard,  5  Id.,  656). 

VI.  There  can  be  no  doubt  about  the  appealable  character  of 
the  present  order.  The  right  to  a  proper  complaint,  botli  in- 
volves the  merits  of  the  action,  and  affects  a  substantial  right 
within  subd.  3,  of  §  349  of  the  Code.  The  general  term  of  the 
Superior  Court  so  assumed  within  the  last  sijg-months,  in  the  case 
of  an  answer  (as  undeniable  law),  in  a  matter  presented  to  it 
from  the  office  of  the  counsel  for  the  present  defendant  (Matti- 
sons  v.  Smith,  19  Alb.  Pr.,  288). 

'Francis  H.  Dykers,  for  the  respondent. — I.   The  order  of 
the  special  term  is  not  an  appealable  order. 

1.  The   only  subdivision   under  §  349  of  the  Code,  under 
which  the  order  could  be  classed,  is  subdivision  3,  which  pro- 
vides that  an  order  of  a  single  judge  may  be  appealed  from 
"  when  it  involves  tjje  merits  of  the  action,  or  some  part  thereof, 
or  affects  a  substantial  right." 

2.  The  motion  having  been  denied  by  the  judge  at  special 
term,  on  the  ground  that  the  defendant's  remedy  was  to  call  for 
a  bill  of  particulars  under  §  158,  when  he  could  have  obtained 
all  the  particulars  sought  for  on  the   motion,  the  question  is  a 
mere  matter  of  practice,  and  it  is  well  settled  that  orders  affect- 
ing mere  matters  of  practice  are  not   appealable  (Burhans  v. 
Tibbits,  7  Ho>o.  Pr.,  78;  St.  John  v.  West,  4  Id.,  332 ;  Tallman 
v.  Hinman,  10  Id.,  90).      As  the  defendant  could  have  obtained 

1  he  seeks  by  this  motion,  under  a  demand  for  a  bill  of  partic- 

,rs,  the  order  denying  the  motion  cannot  be  said  to  involve 
the  merits,  or  affect  a  substantial  right. 

II.  If,  however,  the  court  should  be  of  opinion  that  the  order 
is  an  appealable  one,  then  the  order  of  special  term  was 
properly  made,  and  should  be  affirmed.  The  matters  in  which 
the  complaint  is  sought  to  be  made  more  definite  and  certain, 
are  not  substantive  facts  going  to  make  up  the  cause  of  action. 

1 .  Sections  8  and  9,  of  article  3,  title  8,  chapter  22,  of  the 
Revised  Statutes,  are  as  follows  : 

"  §  8.  All  wagers,  bets  or  stakes  made  to  depend  upon  any 
"  race,  or  upon  &9f  gaming  by  lot  or  chance,  or  upon  any  lot, 
"  chance,  casualty,  or  unknown  or  contingent  event  whatever 


444  ABBOTTS'  PRACTICE  REPORTS. 

Arrieta  v.  Morrissey. 

"  shall  be  unlawful.  All  contracts  for  or  on  account  of  any  money 
"  or  property,  or  tiling  in^  action  so  wagered,  bet  or  staked,  shall 
"  be  void. 

"§9.  Any  person  who  shall  pay,  deliver,  or  deposit  any 
"  money,  property  or  thing  in  action,  upon  the  event  of  any 
"  wager  or  bet  herein  prohibited,  may  sue  for,  and  recover,  the 
"  same  of  the  winner  or  person  to  whom  the  same  shall  be  paid 
"or  delivered,  and  of  the  stakeholder  or  other  person  in  whose 
"  hands  shall  be  deposited  any  such  wager,  bet,  or  stake,  or  any 
"part  thereof,  whether  the  same  shall  have  been  paid* over  by 
"  such  stakeholder  or  not,  and  whether  any  such  wager  be  lost 
"or  not." 

If  these  sections  give  a  right  of  action,  the  complaint  in  this 
suit,  following  as  it  does  tho  exact  language  of  the  statute,  c3,u- 
not  be  complained  of  as  not  containing  a  sufficiently  distinct 
statement  of  the  cause  of  action. 

2.  There  is  no  limitation  in  these  sections  as  to  the  time 
within  which  the  action  must  be  brought,  nor  the  amounts  for 
which  it  may  be  brought.  « 

3.  These  sections  in  these  respects  are  different  from  §  14  of 
the  same  act,  where  a  party  must  lose  at  least  twenty- five  dol- 
lars at  one  sitting,  and  must  bring  his  action  within  three 
months  from  the  time  of  the  loss,  or  he  is  without  relief;  and  it 
was  probably  a  belief  on  the  part  of  the  defendant  here  that 
this  action  was  brought  under  §  14  which  made  him  suppose 
that  the  facts  wliich  he  seeks  by  his  motion  to  have  inserted  in 
the  complaint  formed  a  necessary  part  of  the  facts  constituting 
the  cause  of  action. 

4.  If  therefore  §§  8  and  9  give  a  cause  of  action,   and   t 
complaint  is  properly  framed  under  them — even  though   t 
facts  of  the  case,  as  they  shall  appear  on  the  trial,  should  shotv 
that  the  complaint  should  have  been  framed  under  §  14,  that  is 
no  ground  for  interfering  with  the  complaint  now ;  for  no  other 
facts  appear  now  but  what  are  stated  in  the  complaint. 

III.  The  distinction  between  §§  8  and  9  and  §  14  is,  that 
where  a  person  bets  on  a  race,  or  on  a  game  whicli  is  exclu- 
sively a  game  of  lot  or  chance,  and  at  whicli  one  party  per- 
forms the  act  constituting  the  game  of  lot  or  chance,  or  in 
other  words  plays  the  game,  and  the  other  party  only  bets, 
such  betting  is  within  §  8  : — of  this  class  are  *l'aro,"  "  roulette," 
"  three  card  rnonte."  Whereas  the  games,  contemplated  by 


NEW  SEEIES  ;  VOL.  I.  445 

Arrieta  v.  Mormsoy. 

§  14  are  games  which  are  not  games  exclusively  of  lot  or  chance, 

•  but  games  in  which  the  result  is  attained  to  a  certain  extent 

O 

by  skill,  and  at  which  there  are  several  hands  or  sides,  and  at 
which  games  the  party  losing  has  a  hand  or  plays  the  game, 
and  at  which  games  betting  is  rather  an  incident  to  than  a 
necessity  of  the  game,  such  as  jsvhist,  all  fours,  euchre,  &c. 
The  first  kind  of  games*  are  those  selected  by  professional 
gamblers — the  last  are  those  more  frequently  found  in  private 
society,  and  perhaps  this  may  be  one  of  the  reasons  why  the 
legislature  put  a  limit  to  the  recovery  of  money  lost  at  the 
latter  kind  of  games. 

IV.  The  uniting  together  several  sums  of  money  lost  at 
different  times  in  the  same  claim,  where  all  the  circumstances 
attending  the  loss  of  each  sum  are  the  same,  is  not  the  uniting 
of  several  causes  of  action.     1.  The  action  given  by  the  statute 
to  recover  money  lost  in  this  way  is  the  action  of  debt  or  as- 
sumpsit  (3  Rev.  Stat.,  chap.  6,  title  6,  art.  1,  §  1,  5th  ed.,  783). 
2.  In  debt  or  assumpsit  it  is  always  permitted  to  unite  several 
sums  as  forming  the  elements  of  one  account,  and  it  would  be 
bad  pleading  to  declare  on  each  item  separately. 

V.  The  remedy  the  defendant  should  avail  himself  of,  is  to 
demand  a  bill  of  particulars  under  §  158  of  the  Code,  and  if  a 
sufficient  bill  is  not  furnished  he  may  apply  for  a  further  one. 

1.  The  matters  called  for  can  be  obtained  by  a  bill  of  particu- 
lars (Code,  §  158;  McKinney  v.  McKmney,'12  How.  Pr.,  22). 

2.  The  matter  sought  to  be  made  a  part  of  the  complaint  would 
be  in  effect  a  recital  of  the  facts  by  which  the  claim  must  be 
established,  or  at  least  the  embodiment  of  a  bill  of  particulars 
in  the  complaint  (Sloman  v.  Schmitt,  8  Abb.  Pr.,  5  ;  Common 
Pleas,  General  Term,  BKADY,  J.,  St.  Johns  v.  Beers,  24  Hov). 
Pr.,  377).     3.  The  cases  to  which  a  motion  to  make  more 
definite  and  certain  apply  are  only  those  where  some  allega- 
tion of  a  material  matter  is  left  out,  and  not  where  the  matter 
sought  for  is  simply  a  detailed  account  of  the  plaintiff" 's  claim 
(compare  §§  158  and  160). 

•  CAEDOZO,  J. — It  is  impossible  to  say  positively,  upon  the  com- 
plaint, as  drawn,  whether  the  plaintiff"  bases  his  complaint  upon 
§  9  or  §  14  of  the  statute  against  betting  and  gaining  (2  Rev.  /Stat. 
4th  ed.,  72). 


446  ABBOTTS'  PRACTICE  REPORTS. 

Arrieta  v.  Morrissey. 

The  counsel  for  the  respondent  says  in  his  points : — "  The  dis- 
"  tinction  between  §§  8  and  9  and  14  is,  that  where  a  person 
"  bets  on  a  race  or  on  a  game,  which  is  exclusively  a  game  of 
"  lot  or  chance,  or  in  other  words,  plays  the  game,  and  the  other 
"  party  only  bets,  such  betting  is  -within  sections  8  and  9.  Of 
u  this  class  a.re  'faro,'  'roulette,'  and  'three-carded  monte," 
"  whereas  the  games  contemplated  by  §  14  are  not  games  exclu- 
"  sively  of  lot  or  chance,  but  games  in  which  the  result  is  at- 
*'  tained  to  a  certain  extent  by  skill,  and  at  which  there  are 
"  several  hands  or  sides."  Assuming,  without,  however,  decid- 
ing this  to  be  a  correct  exposition  of  the  statute^  I  think  that  if 
the  plaintiff  meant  that  the  money  was  lost  by  betting  on  games 
of  "  faro,"  and  that  that  game  is  purely  one  of  a  character  at 
which  but  one  person  plays,  the  complaint  should  contain  aver- 
ments plainly  showing  that  to  be  the  state  of  facts,  and  failing 
to  do  so,  may  well  be  required  to  be  made  more  definite  and 
certain. 

I  am  obiged  to  confess  that  I  do  not  know  that  "  faro  "  is 
exclusively  a  game  of  chance,  or  that  but  one  person  plays  at  it, 
and  I  see  nothing  in  the  present  complaint  which  informs  me 
that  such  is  the  fact.  It  is  alleged  that  the  "  bets  were  made  to 
"  depend  on  a  game  of  lot  or  chance,"  but  that  would  be  equally 
true,  whether  the  game  was  exclusively  a  game  of  lot,  or  par- 
took of  a  mixed  character  of  chance  and  skill.  Nor  does  the 
averment  that  "  the  game  of  lot  or  chance  was  under  the  man- 
"  agemeut  or  direction  of  the  defendant "  convey  to  my  mind 
anything  more  than  that  the  pleader  meant  to  say  that  the  de- 
fendant wras  the  proprietor  or  manager  of  the  establishment.  It 
is  not  too  much  to  require  the  plaintiff,  who  declares  himself  a 
violator  .of  the  law,  and  of  honor  too,  to  make  his  complaint  in 
clear  and  unmistakable  language,  and  to  use  such  distinct  and 
accurate  expressions,  that  the  court  can  understand  upon  which 
section  of  the  statute  the  plaintiff  rests  his  demand  ;  and  1  do 
not  feel  any  disposition  to  relax  the  strict  rules  of  pleading  in 
favor  of  such  a  person  and  such  a  claim.  No  argument  that  the 
action  is  brought  under  section  9  can  be  drawn  from  the  aver- 
ment that  the  money  lost  was  "  paid  and  delivered  "  to  the  defen- 
dant, because  those  words  are  used  in  both  sections  9  and  14  of' 
the  statute,  and  manifestly  would  be  applicable  to  any  complaint 
in  which  the  plaintiff  meant  to  allege  that  he  had  paid  the  amount 
of  the  bets  he  had  lost. 


NEW  SERIES  ;  VOL.  I.  447 

Arrieta  v.  Morriesoy. 

That  it  cannot  be  clearly  and  certainly  understood  what 
cause  of  action, — that  is,  whether  arising  under  §  9,  or  under 
§  14, — the  plaintiff  has  set  up  in  his  complaint,  is  a  sufficient 
reason  for  requiring  the  pleading  to  be  made  more  definite 
and  certain. 

Moreover,  as  the  pleading  is  to  be  taken  most  strongly 
against  the  plaintiff  who,  by  proper  averments,  could  have 
made  it  clear,  I  think  enough  has  been  said  to  show  that  the 
defendant  might  treat  this  complaint  as  being  framed  under 
§  14;  and  if  this  be  so,  it  is  clear  that  there  is  in  each  subdivis- 
ion or  count  more  than  one  cause  of  action.  Each  time  or  sit- 
ting at  which  a  loss  occurred  formed  a  separate  cause  of  action, 
and  it  is  obvious  that  each  count  of  this  complaint  refers  to  at 
least  two  times  or  sittings.  The  causes  of  action  belong  to  the 
same  general  class,  and  therefore  may  be  joined  in  one  com- 
plaint, but  they  must  be  separately  stated  (Cock,  §  167). 

And  this  is  especially  proper  here,  because  if  at  any  sitting, 
the  loss  does  not  amount  to  twenty-five  dollars,  there  could  be 
no  action  maintained  for  the  amount  lost  at  that  sitting.  So  if 
the  actions  were  not  brought  within  three  months  after  the  pay- 
ment there  could  be  no  recovery.  It  is  plain,  then,  that  the 
defendant  might  have  defences  to  some  of  the  causes  of  action 
which  he  could  not  plead  as  to  the  others,  and  as  the  defendant 
is  not  to  be  permitted  to  answer  a  bill  of  particulars,  it  seems 
to  me  that  unless  the  complaint  be  drawn  properly,  he  may  be 
unable  to  avail  himself  of  all  the  defences  to  every  part*of  the 
claim  to  which  he  may  be  entitled.  At  all  events  it  would  be 
throwing  upon  the  defendant  the  burthen  of  separating  in  his 
answer  the  supposed  causes  of  action,  and  making  his  defences 
to  each  according  to  circumstances,  unless, — which 'we  cannot 
know, — he  has  to  each  of  the  claims  the  same  defences.  I  do 
not  think  that  that  should  be  done.  It  would  be  to  shift  from 
the  plaintiff  to  the  defendant  the  burthen  of  making  a  good 
pleading,  which,  in  the  first  instance,  rests  on  the  former. 

In  any  view,  therefore,  of  the  complaint,  I  think  the  defend- 
ant properly  moved  t-q,  make  it  more  definite  and  certain 
(Clark  v.  Farley,  3  Duer,  645  ;  Harsen  v.  Bayard,  5  Id.,  656). 

The  statute  cited  by  the  plaintiff's  counsel  (3  JKev.  Stat., 
ch.  8.  title  6,  art.  1,  §  11,  5th  ed.  783,  or  see  2  JKev.  Stat.,  722, 
4th  ed.)  has  no  application.  This  suit  is  not  brought  either 
for  a  penalty  or  forfeiture,  and  it  is  necessary  that  the  plain- 


448  ABBOTTS'  PRACTICE  REPORTS. 

Arrieta  v.  Morrissey. 

tiff's  complaint  should  be  special  (McKeon  v.  Caherty,  1  Hall, 
300  ;  Moran  v.  Morrisssj,  Ig  Abb'  Pi\,  131 ;  Langworthy  v. 
Bromley,  29  How.  Pr.,  92). 

I  am  for  reversing  the  order  appealed  from. 
DALY,  J.,  dissented. 

BEADY,  J. — Assuming  the  complaint  to  be  eonnfl,  and  that  the 
various  expositions  by  Judge  DALY  are  correct  in  reference  to 
the  law  governing  complaints  in  actions  of  this  character, 
nevertheless  the  Code,  §  160,  applies  to  them.  It  has  been  held 
(Betts  v.  Bache,  14  Abb.  Pr.,  279)  that  a  complaint  framed  as 
suggested  by  Judge  DALY  is  deficient  in  certainty;  ami  the 
court,  per  ROBERTSON,  J.,  says  "  The  authors  of  the  Code  un- 
"  doubtedly  intended  to  require  parties  in  their  pleadings  to 
"show  generally  that  they  had  a  good  cause  of  action ;  unless 
"  the  adverse  party  complained  of  not  being  sufficiently  noti- 
"  fied  of  the  particular  transaction,  the  remedy  for  the  first 
"  being  by  a  demurrer,  and  the  second  by  a  motion."  I  under- 
stand that  case  to  be  a  clear  intimation  that  the  court  would, 
in  such  an  action  as  this,  upon  a  general  allegation  of  the  loss 
of  money  contrary  to  the  provisions  of  the  statute  against  gam- 
ing and  betting,  require  the  plaintiff  to  be  more  definite  in  the 
statement  of  his  claim.  The  remedy  sought  does  not  affect 
the  form  of  the  complaint,  and  therefore  it  is  not  perhaps 
necessary  to  consider  the  sufficiency  of  that  paper  as  to  the 
•cause  of  action  itself.  The  question  is  whether  it  should  be 
made  more  definite  and  certain,  and  I  think,  as  there  are  two 
sections  of  the  statute  differing,  in  their  legal  effect,  and  the 
remedies  provided,  the  plaintiff  should  be  required,  when  called 
upon,  to  make  his  complaint  more  definite  and  certain,  it'  the 
cause  of  action  as  stated  may  include  claims  under  both  those 
sections.  If  the  plaintiff  is  unable  to  comply  with  the  order 
of  the  court,  it  may  be  modified  on  a  proper  application. 

I  concur,  therefore,  with  Judge  CAUDOZO,  that  the  order  of 
the  special  term  should  be  reversed.      • 

Order  reversed. 


NEW   SERIES;    VOL.   I.  449 

Beekman's  Petition. 


BEEKMAN'S   PETITION. 

Supreme   Court,  first  District;    General  Term,   November , 

1865. 

FRAUD  AND  LEGAL   IRREGULARITY  nsr  ASSSESSMENTS. — VACAT- 
ING.— POWER  CONFERRED  ON  THREE  OR  MORE  PERSONS. 

An  assessment  for  the  expenses  of  a  local  improvement  in  the  city  of  New 
York,  will  not  be  set  aside  as  fraudulent  or  irregular,  merely  because 
made  before  the  work  has  been  done.  In  such  case,  an  estimate  of  the  ex- 
penses being  necessary,  the  assessors  are  authorized  to  make  it,  though 
not  specially  directed  to  do  so  in  the  ordinance. 

Where  one  of  the  assessors  named  in  the  ordinance  of  a  municipal  corpora- 
tion resigns,  and  a  successor  is  appointed  by  the  officers  in  whom  the 
power  of  appointment  is  vested  by  law,  the  latter  must  be  notified  to  act. 
The  remaining  members  of  the  board  have  not  power  to  proceed  without 
his  presence  or  notice  to  him  •  and  an  assessment  made.under  such  circum- 
stances is  irregular. 

The  case  of  Beekman's  Petition  (19  Abb.  Pr.,  245),  affirmed. 

Appeal  from  an  order  vacating  an  assessment. 

The  proceedings  are  reported  in  19  Abb.  Pr.,  0.  S.,  245.  From 
the  decision  there  given,  the  corporation  appealed. 

BY  THE  COURT.* — LEONARD,  J. — This  is  an  appeal  on  the 
part  of  the  city,  from  an  order  vacating  an  assessment,  on 
proceedings  taken  under  the  act  of  1858. 

The  petitioner  objects  that  the  assessment  has  been  prema- 
turely imposed.  The  ordinance,  authorizing  the  improvement,, 
directs  the  work  to  be  done  at  the  expense  of  tho  city,  for  its 
more  speedy  execution.  The  work  was  not  completed  when  the 
evidence  was  taken  in  the  said  proceeding  in  August,  1864  ; 
although  the  assessment  was  reported  to  the  board  of  revision, 
&c.,  in  January,  and  confirmed  by  that  board  in  March,  1864. 

It  is  indicated  by  the  terms  of  the  ordinance  that  the  im- 
provement was  to  be  made  by  the  city,  under  section  270  of 
the  act  of  April  9,  1813  (  Vide  Dames'  Laws,  567). 

It  is  provided  by  an  act  passed  in  1824,  chap.  49,  that  the 

*  Present,  INGKAHAM,  LEONABD,  and  BARNAKD,  JJ. 


450  ABBOTTS'  PKACTICE  REPORTS. 

Beekinan's  Petition. 

authority  given  by  section  270,  of  the  act  of  1813,  shall  apply 
to  all  the  ordinances  of  the  city,  for  work  to  be  done,  and  that 
the  assessment  therefor  shall  be  made  pursuant  to  section  1T5 
of  the  same  act.  Referring  to  section  175,  it  will  be  seen  that 
it  contains  no  direction  that  the  assessment  shall  be  made  be- 
fore or  after  the  work  has  been  performed. 

If  the  assessment  precedes  the  performance  of  the  work,  it  is 
entirely  clear  that  an  estimate  of  the  expense  must  be  first 
made  ;  but  after  the  work  has  been  completed,  and  the  expense 
has  been  paid  or  incurred,  or  definitely  ascertained,  the  estimate 
is  superfluous  (Wetraore  v.  Campbell,  2  Sandf.,  342). 

The  same  case  was  referred  to  and  re-affirmed  by  the  court  of 
Appeals  in  Manice  v.  The  Mayor  of  New  York  (8  N.  Y.  [4 
Seld^,  120).  In  the  present  case,  all  the  work  had  been  con- 
tracted for,  but  a  portion  of  it  only  had  been  completed  when 
the  assessment  was  made.  It  thus  appears  that  an  estimate 
was  necessary  in  order  to  ascertain  the  amount  to  be  assessed. 
The  assessors  were  sworn  to  make  a  just  estimate  and  assess- 
ment, but  the  ordinance  omits  any  direction  for  an  estimate. 
The  ordinance  was  adopted  in  November,  1860,  and  the 
assessors  were  named  therein,  the  common  council  then  being 
authorized  to  make  the  appointment.  These  assessors  proceed- 
ed to  make  the  estimate  and  assessment  in  October,  1863, 
which  they  reported  in  December  following  to  the  board  of 
revision,  &c.,  who  are  charged  now  with  the  duty  of  revising 
and  confirming  assessments.  I  think  it  not  necessary  that  the 
duties  to  be  performed  by  the  assesssors  should  be  named  in 
the  ordinance.  The  law  has  prescribed  the  duty  which  they  are 
to  perform. 

The  assessors  being  appointed  by  the  ordinance,  were  re- 
quired to  proceed  and  perform  the  duty  which  the  law  imposed 
upon  them  as  such  officers. 

The  objection  that  the  assessment  could  not  be  made  before  the 
completion  of  the  work,  and  that  the  assessors  were  not  author- 
ized to  make  ail  estimate  upon  which  to  fotmd  their  assess- 
ment is  not  well  taken. 

Another  objection  is  urged  by  the  petitioners,  arising  oat  of 
subsequent  proceedings,  in  respect  to  this  assessment. 

One  of  the  sssessors  appointed  by  the  ordinance  in  1 856,  re- 
signed on  the  31st  of  December,  1863,  after  the  assessment 
list  had  been  reported  to  the  beard  of  revision,  &c.  On  the 
13th.  of  January  following,  that  board  returned  the  list  to  the 


NEW  SERIES ;  YOL.  I.  451 

Beekman's  Petition. 

assessors  for  correction.  The  two  remaining  assessors  appointed 
by  the  said  ordinance  of  1856,  acted,  in  making  the  corrections, 
without  the  concurrence  of  a  third  assessor,  who  had  been  ap- 
pointed in  the  place  of  the  one  who  had  resigned,  by  the  board 
of  commissioners  of  taxes,  &c.,  by  the  authority  of  the  act  which 
created  that  board,  passed  in  1859.  It  appears  from  the  evidence 
that  the  newly  appointed  assessor  was  not  invited  to  act  in 
making  the  corrections  in  the  assessment  list,  because  he  had 
not  been  named  in  the  ordinance. 

The  report  of  the  assessors  declares  that  they  derive  their  ap- 
pointment from  the  common  council  under  the  said  ordinance. 
It  has  not  beeii  insisted  that  the  two  assessors  who  were  ap- 
pointed by  the  said  ordinance,  had  not  authority  to  act  after 
the  act  of  1859,  making  it  the  duty  of  the  commissioners  of 
taxes,  &c.,  to  appoint  assessors.  Nor  is  it  claimed  that  they 
derive  any  authority  to  make  an  estimate  or  assessment  by  vir- 
tue of  any  appointment  from  that  board. 

The  act  of  1859,  creating  the  said  board,  contains  a  provision 
authorizing  a-majority  of  the  board  of  assessors  to  be  appointed 
under  that  act,  to  make  estimates  and  assessments.  But  the 
provisions  of  that  act  are  not  made  applicable  to  the  assessors 
theretofore  existing  (Laws  o/"1859,  oh.  302,  §  16). 

The  board  of  assessors  consisted  of  three  members,  two 
appointed  by  the  ordinance,  and  one  by  the  board  of  commis- 
sioners of  taxes,  &c.,  but  the  two  former  only  acted.  It  cannot 
be  assumed  that  the  other  was  notified,  but  neglected  to  meet 
with  the  other  two ;  because  the  evidence  is,  that  it  was  thought 
best  that  he  should  not  act,  as  he  was  not  named  in  the  ordi- 
nance. The  statutory  rule,  as  well  as  the  rule  of  the  common 
law,  applicable  before  the  act  of  1859,  required  all  the  members 
to  meet  and  consult,  although  a  majority  may  decide,  unless 
special  provision  is  otherwise  made  (2  Rev.  Stat.,  555 ; 
Doughty  v.  Hope,  3  Den.,  594.)  That  rule  is  the  one  to  which 
the  assessors  in  question  were  required  to  conform.  They  dis- 
regarded it.  This  was  a  legal  irregularity,  which  rendered 
their  action,  after  December  31,  1863,  invalid.  Under  the  act 
of  1859,  if  that  rule  was  applicable  here,  it  would  be  illegal  to 
exclude  one  assessor  from  actiug  intentionally.  It  might  be 
lawful  for  one  or  two  to  act  if  one  neglected,  or  was  unable  to 
perform  duty  as  an  assessor. 

The  order  appealed  from  must,  therefore,  be  affirmed,  with 
costs. 


ABBOTTS'  PRACTICE  REPORTS. 


McVickar  v.  Ketchum. 


jjVj  /!  I      '  McYICKAR  against  KETCHUM. 

York  Superior  Court ;  General  Term,  November,  1865. 
WITNESS. — EXAMINATION  OF  PARTIES. 

Under  the  provisions  of  the  Code  of  Procedure, — which  authorize  the  exam- 
ination of  parties  to  actions  before  the  trial, — the  testimony  of  a  party 
may  be  taken  before  issue  joined. 

The  object  of  allowing  a  party  to  be  examined  at  the  instance  of  his  ad- 
versary, before  trial,  was  not  merely  for  convenience,  but  to  enable  a 
party  to  obtain  and  seeure  evidence  in  support  of  hia  cause  of  action  or 
defence. 

Appeal  from  an  order. 

The  plaintiff  obtained  an  order  for  the  examination  of  the 
defendant  Edward  B.  Ketchum,  before  the  complaint  was  served. 
The  facts  are  stated  in  our  report  of  the  cause,  19  Ab  1)  Pr., 
0.  &,  24. 

From  the  order  the  defendant  Edward  B.  Ketchum  appealed. 

F.  N.  Bangs,  for  the  appellant. 
Jere.  Larocque,  for  the  respondent. 

BY  THE  COURT. — MONELL,  J. — The  chapter  of  the  Code 
relative  to  the  examination  of  an  adverse  party,  as  a  witness, 
has  undergone  few  amendments,  and  is  now  substantially  the 
same  as  when  originally  enacted  (Laws  of  1848,  559).  .  The 
only  material  change  is  in  striking  out  the  words  "  in  respect  to 
any  matter  pertinent  to  the  issue,"  in  the  349th,  now  395th, 
section. 

The  oral  examination  of  parties  as  witnesses  is  a  novelty 
introduced  by  the  Code.  Previously,  discoveries,  in  cases  of 
actions  at  law,  were  obtainable  only  by  bill  in  chancery.  In 
abolishing  the  court  of  chancery,  and  all  distinctions  between 
law  and  equity,  it  became  necessary  to  conform  the  practice 
prevailing  in  courts  of  law  and  equity,  to  one  system.  Hence 


NEW  SERIES  ;  VOL.  I.  453 

McVickar  v.  Ketchum. 

the  authority  to  examine  the  adverse  party  was  intended  to  be 
in  lieu  of  the  former  bill  of  discovery. 

No  question  arises,  in  this  case,  as  to  the  right  of  a  party  to 
take  the  examination  of  his  adversary.  The  statute  is  explicit, 
and  the  right  absolute. 

The  only  question  raised  by  the  appellant  is,  whether  the 
examination  can  be  had  before  issue  joined.  The  order 
appealed  from  was  made  before  any  answer  had  been  put  in, 
and  before  the  time  to  answer  had  expired. 

There  is  nothing  in  the  letter  of  the  statute  designating 
when  the  examination  may  be  had.  The  party  may  be  exam- 
ined at  the  trial,  before  the  trial,  conditionally,  or  upon  commis- 
sion. In  respect  to  conditional  examinations,  and  upon  com- 
mission, they  are  regulated  by  other  statutes,  which  are  now 
made  to  include  parties  as  well  as  witnesses.  A  conditional  ex- 
amination may  be  had  immediately  upon  suit  brought  (2  Rev. 
Stat.,  409) ;  but  a  commission  can  issue  only  after  issue  joined 
(/£.).  The  examination  before  the  trial  is  not  a  "  conditional  " 
examination.  The  testimony  taken  may  be  read  by  either 
party  on  the  trial,  whether  the  party  examined  be  present  in 
court  cr  otherwise. 

It  is  difficult  to  discover  a  reason  for  allowing  a  conditional 
examination  of  a  party.  The  authority  to  examine  before  trial 
is  so  ample,  that  a  conditional  examination  can  never  be 
required. 

The  object  of  the  examination  is,  to  obtain  evidence  in  sup- 
port of  the  plaintiff's  cause  of  action,  or  defendant's  defense,  and 
may  be  more  important  to  plaintiff  before  issue  than  afterwards. 
In  the  court  of  chancery  a  bill  of  discovery  was  entertained 
even  before  suit  brought,  and  it  was  not  necessary  to  aver  that 
issue  has  been  joined  (2  Barb.  Ch.,  106).  It  was  sufficient  if 
charged  that  the  discovery  was  necessary  to  enable  the  com- 
plainant to  bring  his  suit  at  law.  In  allowing  the  examination 
to  be  before  trial,  it  must,  have  been  the  intention  of  the  legis- 
lature to  prevent  a  party  from  depriving  his  adversary  of  his 
testimony  at  the  trial.  It  was  not  merely  for  the  convenience  of 
the  party  examining,  but  to  procure  evidence  in  support  of  the 
action  or  defense.  One  of  these  designs  of  the  legislature 
might  always  be  defeated,  if  the  examination  was  postponed 
till  after  issue  joined. 

The  cases  to  which  we  have  been  referred,  as  holding  that  the 


454  ABBOTTS'  PEACTICE  EEPOETS. 

McVickar  i>.  Ketchum. 

issue  must  be  joined  before  the  party  can  be  examined,  were 
decided  prior  to  the  amendment  of  the  349th  section.  In  all 
•  those  cases,  that  section,  as  it  stood  before  the  amendment,  is 
referred  to  as  controlling  the  view  that  the  whole  examination 
must  be  upon  matter  pertinent  to  the  issue. 

The  reason  for  the  amendment  is  not  obvious.  It  was  made 
as  late  as  1863',  and  several  years  after  parties  were  allowed  to 
be  axamined  as  witnesses,  on  their  own  behalf  (Laws  of  1857, 
744).  Since  the  enactment  of  the  law  last  referred  to,  very  lit- 
tle of  the  chapter  in  the  Code,  allowing  adverse  parties  to  be 
examined,  is  of  any  importance.  A  party  may  be  examined  as 
a  witness  on  his  own  behalf,  or  on  behalf  of  any  other  party,  in 
all  cases,  and  either  at  the  trial,  or  conditionally,  or  upon  com- 
mission. Hence,  the  whole  of  the  present  395th  section  might 
as  well  be  repealed. 

As  the  statute  now  stands,  there  is  not,  in  terms,  any  limit  to 
the  time  when  the  examination  may  be  taken,  nor  does  there 
seem  to  be  any  reason  for  a  limitation.  A  conditional  examina- 
tion of  an  adverse  party  can  be  had  immediately  on  the  service 
of  the  summons.  The  reason  is,  that  otherwise  a  party  might 
be  deprived  of  the  testimony  of  an  important  witness.  There 
are  equally  cogent  reasons  for  allowing  the  examination  of  an 
adverse  party  before  issue.  And  besides,  the  evidence  procured 
on  such  examination  may  end  the  litigation. 

In  the  case  before  us  the  necessity  for  an  immediate  examina- 
tion is  not  disputed,  and  the  amendment  of  the  395th  section 
having  removed  the  only  ground  upon  which  the  decisions  in 
the  several  cases  to  which  we  have  been  referred  were  placed,  we 
are  not  bound  to  regard  them  as  authority. 

I  think  the  order  should  be  affirmed.  The  right  to  examine 
the  adverse  party  arises,  in  my  opinion,  immediately  on  the 
commencement  of  the  suit,  and  not  only  after  issue  joined. 


,  J.,  concurred. 
Order  affirmed. 


V 

-    *' 

^ 

DIGEST 


OF 


ALL   POINTS    OF   PKACTICE 

EMBRACED   IN 

THE  STANDAED  NEW  YOEK  EEPOETS. 

Issued  during  the  period  covered  by  this  Volume  : 

Viz.— 30,  31  and  33  NEW- YORK  ;  43,  44  and  45  BARBOTTO  ;  1  DALY  ; 

1  ABBOTTS'  PK.,  N.  S. ;  30  HOWARD'S  PR.  ;  and  31  ID.,  Nos.  1-5  ; 

and  in  the  LAWS  OP  1866. 


ACCOUNTING. 

Where  the  plaintiff  files  his  complaint,  alleging  a  partnership,  and  seeking 
for  an  accounting  by  the  defendant,  if -he  does  not  establish  the  existence 
of  the  partnership,  he  will  not  be  entitled  to  the  accounting.  The  mere 
relation  of  creditor  of  the  defendant,  is  not,  of  itself,  sufficient  to  entitle 
the  plaintiff  to  an  accounting.  Ct.  of  Appeals,  1865,  Salter  v.  Ham,  31 
N.  Y.,  321. 

ABATEMENT. 

The  cause  of  action  in  a  replevin  suit  does  not  abate  on  the  death  of  the 
plaintiff/  and  the  suit  may  be  continued  in  the  name  of  his  representa- 
tives ;  and  the  sureties  on  his  bond  continue  liable.  N.  Y.  Com.  PL,  1865, 
Lahey  v.  Brady,  1  Daly,  443. 

ACKNOWLEDGMENT   OF    DEEDS. 

The  certificate  of  acknowledgment  of  a  county  judge  is  entitled  to  be  read 
in  evidence,  or  recorded  in  another  county,  without  being  authenticated 
by  the  clerk  of  the  county  of  which  the  officer  is  judge ;  whether  such 
judge  is  or  is  not  of  the  degree  of  counsellor-at-law.  Supreme  Ct.,  1865, 
The  People  v.  Hurlbutt,  44  Barb.,  126. 


456  ABBOTT'S'  PRACTICE  DIGEST. 


AFFIDAVITS. 


ACTION. 

1.  A  defendant,  sued  in  an  action  to  which  he  has  a  partial  defence,  such  as 
part  payment,  is  bound  at  his  peril  to  appear  and  interpose  such  defense ; 
and  if  he  does  not  do  so,  but  suffers  judgment  to  go  against  him  for  the 
full  amount,  he  cannot,  after  payment  of  the  judgment,  recover  back  the 
excess  by  a  second  action.     Although  it  be  unconscionable  to  allow  the 
creditor  to  retain  the  excess  which  he  has  thus  recovered,  it  is  a  settled 
rule  that  one  cannot  overhaul,  in  another  action,  what  has  once  been 
adjudged  by  a  court  of  competent  authority,  having  jurisdiction  of  the 
parties  and  of  the  subject  matter  adjudged.    The  judgment  is  equally  a 
bar,  whether  obtained  by  default  or  after  a  trial,  as  to  all  matters  neces- 
sarily adjudged  by  the  judgment.    It  concludes  parties  and  privies  as  to 
all  matters  of  fact  necessarily  determined  by  the  judgment,  so  that  they 
cannot  be  overhauled  in  another  court.     [Reviewing  many  cases.]     Su- 
preme Ct.,  1864,  Binch  v.  Wood,  43  Barb.,  315. 

2.  Actions  under  provisions  of  Metropolitan  Sanitary  Act,  regulated.    1  Laws 
qf  1866, 142,  ch.  72,  §  30 ;  2  Id.,  1462,  ch.  686. 

ADVERSE    POSSESSION. 

Where  different  parties  claim  the  same  premises  under  conflicting  grants 
from  the  same  source,  each  grant  being  upon  condition  that  the  grantee  is 
the  true  owner  of  adjacent  lands,  possession  under  such  grant  by  the  one 
who  was  not  the  true  owner  of  the  adjacent  lands,  cannot  be  deemed  ad- 
verse so  as  to  ripen  into  a  title  against  the  other.  N.  Y.  Superior  Ct., 
1863,  Towle  v.  Palmer;  Ante,  81. 

ADVERTISEMENTS. 

Advertisements  of  legal  notices  and  statutes  in  the  county  of  Hamilton,  regu- 
lated. 2  Laws  of  1866,  1474,  ch.  690. 

AFFIDAVITS. 

1.  The  statute  giving  notaries  power  to  certify  affidavits,  is  not  to  be  con- 
strued as  restricted  to  affidavits  in  actions  pending.     Supreme  Ct.,  Sp.  T., 
1865,  Mosher  v.  Heydrich,  Ante,  258. 

2.  Proofs  and  examinations,  &c.,  under  Metropolitan  Sanitary  Act,  may  be 
taken  by  or  before  one  or  more  members  of  the  Board,  or  any  other  person, 
as  the  Board  shall  authorize ;  and  the  secretary,  the  sanitary  and  assistant 
superintendents,  and  any  member  of  said  Board  shall,  severally,  have 
authority  to  administer  oaths  in  such  matters.    1  Laws  of  1866, 128,  ch.  72, 
§  14,  subd.  2. 

3.  An  affidavit,  in  the  commencement  of  which  the  deponent  is  designated  by 
name,  is  not  void  for  not  being  subscribed  by  him.     [3  Johns.,  539.] 
N.  Y.  Superior  Ct.,  1863,  Soule  v.  Chase,  Ante,  48. 

4.  The  party's  subscription  to  the  affidavit,  added  to  his  statement  for  judg- 
ment by  confession,  is  a  sufficient  signing  of  the  statement,  within  the 


NEW  YORK  :  1866.  457 


A5IF.XD1IF.XT. 


provision  of  the  Code  requiring  statements  for  judgment  by  confession,  to 
be  signed.     Supreme  Ct,  Sp.  T.,  1865,  Mosher  v.  Heydrich,  Ante,  258. 
Compare  Soule  v.  Chase,  Ante,  48 :  Barker  v.  Cook,  16  Abb.  Pr.,  83. 
5.  A  notary  public,  in  'certifying  an  affidavit,  need  not  add  the  place  of  his 
residence  thereto,  to  show  that  the  venue  was  within  his  jurisdiction.  The 
presumption  in  the  case  of  a  notary  is  the  same  as  in  the  case  of  a  commis- 
sioner or  justice, — that  he  acted  within  his  proper  jurisdiction.     Supreme 
Ct.,  Sp-  T.,  1865,  Mosher  v.  Heydrich,  Ante,  258. 

ALIMONY. 

1.  As  a  general  rule,  when  an  action  for  divorce  is  brought  against  the  wife, 
and  she,  in  her  answer,  either  denies  her  guilt,  or  sets  up  affirmative   de- 
fences, such  as  forgiveness  or  recrimination,   or   does  both,  counsel  fees 
and  alimony  will  be  allowed  her,  unless  the  court  is  satisfied  that  she  is 
altogether  in  the  wrong,  or  has  no  reasonable  ground  of  defence.      JV.  Y. 
Superior  Ct.,  Sp.  T.,  1866,  Strong  v.  Strong,  Ante,  358. 

2.  The  fact  that  on  a  trial  had  by  a  jury,  on  issues  framed,  involving  a  denial, 
forgiveness,  and  recrimination,  the  jury  disagreed,  is  enough  to  show  that 
she  has  reasonable  ground  of  defence,  without  the  positive   affidavits 
of  the  wife  and  of  witnesses,  usually  required  on  motions  for  such  allow- 
ance.    Ib. 


AMENDMENT. 

1.  A  complaint  may  be  amended  on  the  trial  so  as  to  change  the  claim  from 
ene  for  goods  sold  and  delivered,  to  one  for  goods  bargained   and  sold. 
And  such  an  amendment  may  be  allowed  by  a  referee.      [11  N.  Y.,  374; 
4  Duer,  38;  1  Sandf.,  719;  2  Id.,  421;  6  Duer,  294,  587;  1  Bosw.,  417.] 
Supreme  Ct,  1864,  Dunnigan  v.  Crummey,  44  Barb.,  528. 

2.  Where  an  owner  of  premises  sued  third  persons,  who  had  entered  upon 
them  under  an  arrangement  with  plaintiff's  lessees,  for  use  and  occupa- 
tion, and  it  appeared  that  upon  the  facts  the  defendants  were  in  as  assignees 
of  the  term ; — Held,  that  the  court  might  allow  an  amendment  of  the 
complaint,  and  permit  a  recovery  of  rent  due  on  the  lease ;  though  a  re- 
covery for  use  and  occupation  could  not  be  had.      Ct.  of  Appeals,  1864, 
Bedford  v.  Terhune,  30  N.  Y.,  453. 

3.  Where,  in  a  proceeding  instituted  by  a  sub-contractor  under  the  mechan- 
ic's lien  law  of  1851,  it  appears  by  the  complaint,  and  by  the  facts  admitted 
by  the  counsel,  that  no  lien  can  be  established,  a  motion  for  leave  to 
amend  the  proceeding  to  make  it  an  ordinary  action  for  the  recovery  of 
money  against  the  contractor,  should  be  denied.      [2  E.  D.  Smith,  594.] 
N.  Y.  Com.  PL,  1859,  Bailey  v.  Johnson,  1  Daly,  61. 

4.  Irregularities  in  a  judgment  roll,  such  as  want  of  proof  of  service  and 
of  no  answer,  which  may  be  cured  by  amendment,  may  be  regarded  as 
having  been  actually  made  in  the  papers  when  an  order  for  the  amend- 
ment is  made  and  filed.     So  held  against  a  motion  of  the  purchaser  under 


458  ABBOTTS'  PKACTICE  DIGEST. 


the  judgment,  to  be  discharged  on  the  ground  of  the  irregularities.     Su- 
preme Ct.,  1865,  Bogert  v.  Bogert,  45  Barb.,  121. 

5.  The  provision  of  the  Code  of  Procedure  of  this  State,  allowing  amendments 
to  be  made  to  cure  the  omission  of  a  party  to  do  any  act  necessary  to  per- 
fect an  appeal  or  to  stay  proceedings  (Code,  §  327),  does  not  authorize  affix- 
ing a  United  States  Revenue  stamp  upon  the  notice  of  appeal,  after  motion 
to  dismiss  the  appeal  for  want  of  such  a  stamp.  Chenango  County  Ct.,  1866, 
Lewis  v.  Randall,  Ante,  135. 

6.  Where  a  referee  has  allowed  an  amendment  of  the  complaint  on  the  trial, 
an  affidavit  of  the  defendant,  in  support  of  a  motion  for  leave  to  serve  an 
amended  answer,  should  not  only  show  that  it  was  the  opinion  of  the  de- 
fendant and  of  his  counsel,  that  an  amendment  of  the  answer  and  further 
evidence  would  be  necessary,  but  should  show  the  facts  relied  upon,  in  ad- 
dition to  those  which  had  been  clearly  established,  and  prove  to  the  satis- 
faction of  the  referee,  that  he  was  taken  by  surprise,  and  specify  with 
reasonable  precision  and  certainty,  the  nature  of  the  evidence  which  the 
amendment  to  the  complaint  rendered  material  and  necessary.  Supreme  Ct., 
1864,  Dunnigan  v.  Crummey,  44  Barb.,  528. 

7.  Several  individuals,  composing  the  firm  of  R.,  F.  &  Co.,  were  sued  by  the 
plaintiff  by  their  firm  name,  the  complaint  alleging  that  the  names  of  the 
individual  members  of  said  firm  were  unknown  to  the  plaintiff.     F.  only  ap- 
peared and  answered,  in  the  first  instance,  claiming  the  goods  sued  for  in  be- 
half of  the  firm.  He  also  put  in  a  supplemental  answer,  in  which  he  claimed 
judgment  in  his  own  favor  for  the  value  of  the  goods,  and  not  in  favor  of 
himself  and  his  copartners  individually.      After  judgment,  the  defendants 
were  allowed  to  amend  by  entering  an  appearance  nunc  pro  tune  for  the 
other  two  partners,  and  to  amend  the  supplemental  answer,  so  as  to  ma,ke 
it  a  claim  in  behalf  of  all  the  members  of  the  firm  individually,  with  o, 
demand  for  judgment  in  their  favor ; — Held,  1st,  That  there  was  no  ground 
for  the  reversal  of  the  judgment.     2d,  That  the  supreme  court  had  ample 
power  to  make  the  amendments  which  were  ordered,  by  inserting  the  in- 
dividual names  of  the  other  members  of  the  firm,  in  the  answer,  and  in  the 
judgment,  in  accordance  with  the  facts  found  on  the  trial.     Ct.  of  Appeals, 
1864,  Thompson  v.  Kissel,  30  N.  Y.,  383. 

ANSWER. 

1.  When  a  joint  answer  of  several  defendants  denies  an  allegation  in  the 
complaint  which  the  plaintiff  must  prove  to  establish  his  cause  of  action 
against  some  of  the  defendants,  but  which  he  need  not  prove  to  entitle  him 
to  recover  against  the  others,  the  answer  raises  a  material  issue  for  the 
defendants  as  to  whom  the  plaintiff  must  prove  such  allegation.     Supreme 
Ct.,  1866-,  Bank  of  Cooperstown  v.  Corlies,  Ante,  412. 

2.  In  an  action  on  a  promissory  note,  an  answer  setting  up  that  it  was  made 
as  an  accommodation  note,  does  not  show  a  misappropriation  of  the  note 
sufficient  to  constitute  a  defence,  by  merely  alleging  that  it  was  expected 
and  intended  that  the  plaintiff  should  have  the  proceeds  of  the  note,  after 
it  was  negotiated,  and  that  instead  of  the  proceeds  he  had  taken  the  note. 


NEW  YORK:   1866.  459 


The  answer  should  show  a  diversion  of  the  note  injurious  to  the  defendant. 
Supreme  Ct.,  1865,  Corbitt  y.  Miller,  43  Barb.,  305. 

3.  Where  a  defendant  relies  on  a  foreign  discharge  in  bankruptcy,  as  a  bar,  or 
on  his  having  entitled  himself  to  a  certificate  in  bankruptcy,  by  which  the 
cause  of  action  is  abated,  he  must  set  forth  not  only  the  statute,  but  the 
certificate  or  discharge,  and  the  prior  proceedings  which  warranted  the 
granting  of  it ;  or,  if  no  discharge  or  certificate  has  been  granted,  the  facts 
in  the  proceedings  relied  on,  as  an  accord.      N.   Y.   Superior  Ct.,  1865, 
Philipe  v.  James,  Ante,  311. 

4.  An  answer  by  a  surety  alleging  that  all  sums  and  liabilities  except  a  small 
amount,  in  reference  to  which  the  defendant  had  interposed  a  separate  de- 
fence, had  been  liquidated,  paid,  and  settled,  by  and  between  the  plaintiff 
and  the  principal  debtor ; — Held,  a  sufficient  allegation  of  payment  to  sus- 
tain a  finding  in  favor  of  the  defendant  upon  evidence  of  payment.    Supreme 
Ct.,  1864,  Albany  City  Fire  Ins.  Co.  v.  Devendorf,  43  Barb.,  444. 

5.  The  objection  to  an  answer  in  an  action  for  slander,  that  it  does  not  make 
the  charge  specific,  by  negativing  mistake,  ignorance,  or  that  the  proceed- 
ing may  have  been  one  in  which  to  swear  falsely  is  not  perjury,  is  a  defect 
in  substance ;  and  the  plaintiff  is  not  bound  to  move  against  the  answer, 
but  may  interpose  an  objection  upon  the  trial,  to  the  admissibility  of  the 
testimony  offered.     Supreme  Ct.,  1865,  Tilson  v.  Clark,  45  Barb.,  178. 

6.  An  answer  interposing  the  Statute  of  Limitations,  presents  a  proper  case 
for  the  court  to  require,  on  defendant's  motion,  that  the  plaintiff  reply. 
Supreme  Ct.,  Sp.  T.,  1865,  Hubbell  v.  Fowler,  Ante,  1. 

It  is  not  generally  essential  that  the  defendant,  in  moving  to  compel  such 
reply,  should  state  that  he  does  not  know  the  ground  on  which  the  plaintiff 
intends  to  rely  to  defeat  the  bar  of  the  statute.  Ib. 

DEFENCES  :   SATISFACTION  OF  A  PART  OF  PLAINTIFF'S  CLAIM. 

APPEAL. 

1.  Notice  of  a  judgment  for  the  purpose  of  limiting  the  time  which  the  party 
notified  has  to  appeal  in  (Code  of  Pro.,  §  332),  cannot  be  given  until  the 
judgment  is  so  completed  to  be  a  fin  il  determination  of  the  rights  of  the 
parties  by  record  evidence,  and  an  appeal  can  be  taken.      Thus,  on  a  trial 
by  the  court  without  a  jury,  where  the  judgment  contains  other  directions 
than  for  the  payment  of  money  only,  the  notice  cannot  be  given  while  the 
clerk  has  neither  made  up  the  judgment-roll,  nor  entered  the  judgment  in 
the  judgment  book.     [14  How.  Pr.,  522;   6  Id.,  226;   3  Sandf.,  721;   16 
How.  Pr.,  402.]     Supreme  Ct.,  1865,  Sherman  v.  Postley,  45  Barb.,  348. 

2.  Where  the  issues  are  tried  by  the  court  in  an  equitable  action,  but  a  fur- 
ther inquiry  is  necessary  before  judgment,  the  entry  of  the  decision  of  the 
court  upon  the  issues,  with  a  direction  for  the  further  proceedings,  is  an 
order  involving  the  merits,  from  which  an  appeal  lies  to  the  court  a,t  gen- 
eral term.      It  is  not  necessary,  as  in  case  of  appeals  to  the  Court  of  Ap- 
peals, to  wait  until  final  judgment.     N.  Y.  Common  Pleas,  1865,  Smith  v. 
Lewis,  1  Daly,  452 ;  disapproving  Lawrence  v.  Farmers'  Loan,  &c.,  Co.,  15 
How.,  57,  and  earlier  cases. 


460  ABBOTTS'  PRACTICE  DIGEST. 


3.  Although  where  a  -court  has  not  jurisdiction  of  the  subject  matter,  the  con- 
sent of  parties  will  not  confer  it ;  a  consent  that  an  appeal  may  be  brought 
after  the  time  has  elapsed  for  bringing  it,  is  not  liable  to  that  objection. 
The  appellate  court  having  the  general  power  to  review  judgments  upon 
appeal,  such  a  consent  does  not  confer  it,  but  it  is  a  mere  waiver  of  the 
right  to  insist  that  the  time  bus  passed  for  bringing  the  appeal.     N.  Y.  Com- 
mon Pleas,  1866,  Jacobs  v.  Morange,  1  Daly,  523. 

4.  It  seems,  that  all  the  defendants  may  join  in  an  appeal  from  a  judgment 
against  them  on  their  joint  answer  as  being  frivolous,  if  the  answer  be 
sufficient  as  respects  some  of  them.      Supreme  Ct.,  1866,  Bank  of  Coopers- 
town  v.  Corlies,  Ante,  412. 

5.  An  order  to  show  cause  is  not  appealable.      It  does  not  dispose  of  the 
rights  of  any  party.     It  is  a  mere  substitute  for  a  notice  of  motion  shorten- 
ing the  time,  which  rests  in  the  discretion  of  the  court.     It  does  not  affect 
the  merits,  and  is  not  final.      N.  Y.  Superior  Ct.,  1864,  Watt  v.  Watt,  30 
How.  Pr.,  345. 

6.  That  on  order  allowing  an  amendment  of  a  pleading  is  not  appealable 
unless  some  absolute  right  of  the  appellant  has  been  violated.     N.  Y.  Com. 
PL,  1866,  Schermerhorn  v.  Wood,  30  How.  Pr.,  316. 

7.  An  application  for  leave  to  amend  a  pleading  at  the  trial,  is  addressed  to 
the  favor  of  the  court,  and  its  decision  is  not  the  subject  of  review  up- 
on appeal.      [1  Hilt.,  536.]      N.  Y.  Com.  PI,  1859,  Bailey  v.  Johnson,  1 
Daly,  61. 

8.  An  order  of  the  supreme  court  allowing,  after  judgment,  an  amendment 
in  the  proceedings  in  the  action  ; — Held,  not  an  appealable  order.     Ct.  of 
Appeals,  1864,  Thompson  v.  Kessel,  30  N.  Y.,  383. 

9.  An  appeal  from  an  order  refusing  to  require  the  complaint  to  be  made 
definite  and  certain,  sustained,  and  the  order  reversed.      Arrieta  v.  Mor- 
rissey,  Ante,  439. 

10.  That  an  order  giving  leave  to  renew  a  motion  is  discretionary ;  and  is 
not  revicwable  upon  appeal.     N.  Y.  Superior  Ct.,  1864,  Smith  v.  Spalding, 
30  How.  Pr.,  339. 

11.  An  order  in  an  action  on  an  undertaking  upon  arrest,  allowing  the  de- 
fendants, on  payment  of  costs,  to  surrender  their  principal  in  discharge  of 
their  liability  as  bail  for  his  appearance,  is  appealable,  even  if  regarded 
as  being  in  the  discretion  of  the  court.     Such  an  order  was  one  affecting  a 
substantial  right,  in  effect  determining  the  action,  and  preventing  a  judg 
ment  from  which  an  appeal  might  have  been  taken.     Ct.  of  Appeals,  1865 
Bank  of  Geneva  v.  Reynolds,  33  N.  Y.,  160. 

12.  If  the  action  is  one  in  which  a  reference  may  be  ordered,  an  order  of  a 
judge  at  special  term  directing  a  reference,  upon  the  ground  that  it  re- 
quired the  examination  of  a  long  account,  is  not  an  order  affecting  the 
merits,  or  which  involves  a  substantial  right,  and  is  not  appealable.  [9  How., 
69;  7  Id.,  359;  7  Hilt.,  173.]     N.  Y.  Com.  Pleas,  1865,  Hatch  v.  Wolf, 
Ante,  77 ;  S.  P.,  1866,  Schermerhorn  v.  Wood,  30  How.  Pr.,  316. 

14.  A  motion  to  dismiss  the  complaint  at  the  trial  of  an  action  on  a  policy  of 
insurance,  upon  the  ground  that  the  proofs  of  loss  served  on  the  defendants 
were  not  in  compliance  with  the*  terms  of  the  policy,  does  not  authorize 


NEW  YORK:   IS 06.  461 


the  defendants  to  raise  tbe  objection,  on  appeal,  that  the  person  on  whom 
the  magistrate's  certificate  was  served,  was  not  the  authorized  agent  of 
the  defendants  to  receive  it.  N.  Y.  Superior  Ct.,  1863,  Van  Deusen  v. 
The  Charter  Oak  Fire  and  Marine  Insurance  Company,  Ante,  349. 
15.  The  court  will  not  allow  an  appellant  to  raise,  upon  the  appeal,  for  the 
first  time,  an  objection  to  an  assumption  by  the  court  below  of  a  doubtful 
fact,  where  he  took  no  objection  below  to  such  assumption,  but  only  to  con- 
clusions of  law  founded  thereon.  N.  Y.  Superior  Ct.,  1862,  Pollen  v.  Le 
Roy,  10  Bosw.,  40 ;  affirmed  on  other  points,  S.  C.,  30  JV.  Y.,  549. 

15.  Objection  not  raised  on  trial,  which  could  have  been  obviated,  not  heard 
at  general  term.     Supreme  Ct.,  1865,  People  v.  Hurlbut,  44  Barb.,  126; 
S.  P.,  People  v.  Third  Avenue  R  R.  Co.,  45  Id.,  63. 

16.  An  order  granting  or  denying  a  motion  to  open  a  regular  inquest  can- 
not be  reviewed  on  appeal  by  the  general  term.  [16  Wend.,  369  ;  1  N.  Y., 
43.]     N.  Y.  Com.  Pleas,  1863,  Faristo  v.  Corlies,  1  Daly,  274. 

17.  The  question  of  care  and  vigilance  of  a  bailee  is  one  of  fact  for  the  tri- 
bunal which  tried  the  case ;  and  its  finding  will  not  ordinarily  be  dis- 
turbed on  appeal.     N.  Y.  Com.  Pleas,  1862,  Morris  v.  Third  Avenue  R.  R- 
Co.,  1  Daly,  202. 

18.  The  objection  that  the  cause  of  action  proved  is  not  that  alleged,  so  that 
there  is  a  failure  to  prove  the  complaint  in  its  entire  scope  and  meaning, 
if  taken  on  a  motion,  at  the  trial  before   a  referee,  to  dismiss  the  com- 
plaint upon  the  plaintiff's  evidence,  is  available  on  appeal  from  a  judg- 
ment for  the  plaintiff  upon  the  referee's  report  in  his  favor,  although  no 
exceptions  were  taken  to  the  report  upon  the  ground  that  the  cause  of 
action  as  found  was  not  that  set  forth  in  the  complaint.      AT.  Y.  Superior 
Ct.,  1863,  Patterson  v.  Patterson,  Ante,  262. 

19.  Although  a  motion  for  nonsuit  might  have  been  properly  granted  on 
plaintiff's  resting  his  case,  on  the  ground  that  the  evidence  was  too  slight 
to  sustain  the  claim  ;  yet,  where  the  case  was  subsequently  strengthened 
by  the  defendant's  witnesses,  the  exception  taken  on  denying  that  motion 
is  not  available  on  appeal.  N.  Y.  Com.  Pleas,  1861,  Ballard  v.  Lockwood, 
1  Daly,  158. 

20.  On  appeal  from  a  judgment,  entered  on  a  verdict,  which  includes  a  re- 
covery on  separate  causes  of  action,  one  of  which  is  not  sustained  by  the 
evidence,  if  tbe  evidence  relied  on  in  its  support  was  net  admissible  in 
support  of  the  other  cause  of  action,  and  yet  was  such  as  may  have  pre- 
judiced the  jury  in  reference  thereto,  the  court  will  not  allow,  absolutely, 
the  respondent  to  retain  his  judgment  on  deducting  the  erroneous  part,  but 
will  allow  the  appellant  a  new  trial  on  terms.     N.  Y.  Superior  Ct.,  1863, 
Ayrault  v.  The  Pacific  Bank,  Ante,  381. 

21.  Where  evidence  is  ruled  out  by  the  court  below,  the  appellate  court  will 
not  inquire  into  its  relevancy  unless  the  evidence  or  its  substance  appear 
in  the  case,  but  will  assume  that  the  decision  of  the  court  is  correct. 
2V.  Y.  Com.  Pleas.,  1861,  Berry  v.  Mayhew,  1  Daly,  54. 

22.  A  verdict  should  not  be  set  aside  merely  because  the  court  would  have 
come  to  a  different  conclusion  from  that  of  the  jury  on  the   force  and 
•weight  of  the  testimony.     [27  Barb.,  528  •  29  Id.,  491,  504.]     While  the 


462  ABBOTTS'  PEACTICE  DIGEST. 


court  on  review,  may  and  should  set  aside  a  finding  of  fact  if  it  be 
plainly  against  the  weight  of  evidence,  it  certainly  would  not  go  beyond 
that  point  to  interfere  with  decisions  of  fact  fairly  deducible  from  con- 
flicting testimony.  [33  Barb.,  127  •  36  C.  Ct.,  23.]  So  held  on  appeal 
from  a  county  court  to  the  supreme  court.  Supreme  Ct.,  1865,  Fleming 
v.  Smith,  44  Barb.)  554. 

23.  Admission  of  immaterial  evidence  no  reason  for  reversal  on  appeal. 
Benedict  v.  Ocean  Ins.  Co.,  1  Daly,  9. 

24.  Where  an  appeal  from  the  judgment  of  a  referee  is  brought  before  the 
court  without  any  case  containing  the  evidence  given  upon  the  ti-ial  before 
the  referee,    or    any   exceptions  to  rulings  made  upon   the   trial ;  but 
solely  upon  exceptions  taken  by  the  defendant  to  the  conclusions  of  law 
drawn  by  the  referee  from  the  facts  found  by  him,  it  is  the  duty  of  the 
court  to  put  the  most  favorable  construction  upon  such  facts  in  support 
of  the  judgment.     Supreme  Ct.,  1865,  Tibbs  v.  Morris,  44  Barb,,  138. 

25.  That  appellate  courts,  unless  limited  by  statutory  provisions,  have   the 
power  to  give  the  judgment  which  the  inferior  tribunal  should  have  ren- 
dered.    [2   Bradf.,  181.]      Supreme   Ct.,   1865,    Billing  v.  Billing,    45 
Barb.,  86. 

26.  Where  the  findings  of  the  referee  are  imperfect,  it  is  the  duty  of  the 
party  who  is  not  satisfied  with  them  to  apply  for  more  specific  findings, 

•  and  not  seek  to  avail  himself  of  such  defects  on  appeal;  and  if  he  does 
not,  the  finding  of  facts  necessary  to  sustain  the  judgment  will  be  pro 
sumed.  Ct.  of  Appeals,  1864,  Brainerd  v.  Dunning,  30  N.  Y.,  211. 

27.  Where,  on  an  appeal  by  the  defendant  from  a  judgment,  the  facts  were 
agreed  on  by  the  parties,  and  could  not  be  varied  by  any  evidence  which 
might  be  adduced  on  a  new  trial,  and  a  reversal  was  had ; — Held,  that 
final  judgment  for  defendants  should  be  given  on  such  reversal.     N.  Y. 
Com.  Pleas,  1861,  Peterson  v.  Walsh,  1  Daly,  182. 

28.  Where  the  review  and  reversal  of  a  judgment  by  the  ultimate  appellate 
tribunal  was  had  in  accordance  with  existing  practice,  but  was  subse- 
quently held  a  nullity,  because  the  appeal  was  not  taken  in  a  way  that 
entitled  the  court  to  hear  it ; — Held,  that  after  nine  years'  acquiescence 
by  the  party  who  had  recovered  the  original  judgment,  he  should  be 
restrained  by  a  court  of  equity  from  enforcing  it,  unless  he  consented  that 
an  appeal  might  then  be  brought  with  the  same  effect  as  if  it  had  been 
brought  within  the  time  prescribed  by  law.    N.   Y.  Com.  Pleas,  1866, 
Jacobs  v.  Morange,  1  Daly,  523. 

29.  The  provision  of  section  11,  subd.  3,  of  the  Code  of  Procedure,— giving  an 
appeal  to  the  court    of  appeals,  from  certain  orders, — amended,  by  in- 
serting a  provision,  giving  the  court  jurisdiction,  upon  such  appeal,  to  review 
any  intermediate  order  involving  the  merits,  and  necessarily  affecting  the 
order  appealed  from.    2  Laws  of  1866, 1835,  ch.  824,  §  1. 

30.  Where  no  exceptions  are  taken  upon  a  trial  before  a  referee,  and  no 
conclusions  of  fact  are  stated  in  his  report  which  raise  any  questions  of 
law,  and  no  conclusions  of  law  are  stated,  and  the  supreme  court  has 
affirmed  the  judgment,  the  court  of  appeals  has  no  jurisdiction  to  review 
the  case.     Ct.  of  Appeals,  1865,  Doty  v.  Carrolus,  31  N.  Y.,  547. 

31.  An  order  of  the  supreme  court,  setting  aside  a  verdict  as  being  against 


NEW  TOEK :  1866.  463 


the  weight  of  evidence,  and  on  payment  of  costs,  is  not  reviewable,  on 
appeal,  by  the  court  of  appeals.  Ct.  of  Appeals,  1864,  Young  v.  Davis,  30 
N.  Y.,  134. 

32.  Where  the  case  contains  no  finding  of  facts,  an  appeal  to  the  court  of 
appeals  is  not  entitled  to  be  heard.     [16  N.  Y.,  616;  13  N.  Y.,  344.]      Ct. 
of  Appeals,  1865,  Leland  v.  Cameron,  31  N.  Y.,  115. 

33.  The  court  of  appeals  will  not  look  into  the  evidence  to   ascertain 
whether  it  sustains  the  findings  of  the  court  below.     Ct.  of  Appeals,  1865, 
Dayton  v.  Borst,  31  N.  Y.,  435 ;  S.  P.,  1864,  Thompson  v.  Kessel,30  N.  F, 
383 ;  Frost  v.  Koon,  Id.,  428.    And  compare  Glass  v.  McAllister,  31 
N.  Y.,  50. 

34.  The  provisions  of  the  chapter  of  the  Code  of  Procedure  entitled, "  Appeals 
to  the  court  of  appeals,"  as  to  the  security  to  be  given  upon  appeals,  and  as 
to  the  stay  of  proceedings,  shall  apply  to  proceedtngs  taken  under  subd.  3, 
of  section  11, — which  relates  to  appeals  to  that  court  from  orders  in  special 
proceedings,  or  on  summary  application  in  an  action  after  judgment.    2 
Laws  0/1866, 1841,  ch.  824,  §  13. 

35.  "Where  a  judgment  of  reversal  by  the  general  term  does  not  state  that 
the  judgment  of  the  special  term  was  reversed  on  questions  of  fact  [see 
Code  of  Procedure,  $  268],  the  court  of  appeals  is  bound  to  take  the  facts, 

•  as  found  by  the  judge  at  special  term,  to  be  true.  They  must  apply  the 
law  to  the  facts  found  at  special  term ;  and  cannot  look  into  the  evi- 
dence, and  afiirm  or  reverse  the  judgment,  as  they  may  agree  or  disagree 
with  the  original  tribunal  as  to  the  facts.  The  duty  of  the  court  is  to 
determine  whether  the  conclusions  of  law  drawn  from  the  facts,  as  found 
by  the  judge,  are  sound.  Ct.  of  Appeals,  1865,  Crocker  v.  Crocker,  31 
N.  Y.,  507 ;  State  of  Michigan  v.  Phoenix  Bank,  33  Id.,  9. 

36.  Ten  per  cent,  penalty  imposed  upon  appellant  from  a  decree  of  fore- 
closure, where  the  answer  contained  a  general  denial  only,  and  the  appel- 
lant submitted  no  points,  and  pointed  out  no  error  in  the  proceedings  be- 
low.   Ct.  of  Appeals,  1865,  Warner  v.  Lessler,  33  N.  Y.,  296. 

37.  An  appeal  from  an  order  denying  a  motion  for  a  new  trial,  made  on  the 
judge's  minutes,  may  be  taken  to  the  general  term,  notwithstanding  judgment 
has  been  entered  upon  the  verdict.  [Following  22  How.  Pr.,  385  ;  and  dis- 
approving Id.,  386.  ]  Section  349  of  the  Code  of  Procedure,  giving  the  right 
of  appeal  from  such  an  order,  does  not  limit  the  right  to  cases  where 
judgment  has  not  been  entered.    Should  the  verdict  be  set  aside,  the 
special  term  may,  on  motion,  vacate  the  judgment.     Supreme  Ct.,  1865, 
Lane  v.  Bailey,  Ante,  410. 

38.  The  general  term  of  the  supreme  court  have  jurisdiction  of  an  appeal  to 
the  chancellor  from  the  decision  of  a  vice-chancellor,  declaring  the  right 
of  the  complainants,  and  referring  the  matter  to  a  master  for  the  proper 
accounting,  which  appeal  was  pending  at  the  time  the  court  of  chancery 
was  abolished  by  the  Constitution,  &c.,  in  1846.     Ct.  of  Appeals,  1865, 
Green  v.  Givan/33  N.  Y.,  348. 

39.  Where,  on  a  trial  and  verdict,  "  the  entry  of  judgment  is  stayed,  to  the 
end  that  the  party  may  move  for  a  new  trial  on  a  case  containing  excep- 
tions, the  same  to  be  heard  in  the  first  instance  at  general  term,"  and  in- 
stead of  moving  at  general  term,  a  motion  for  a  new  trial  on  the  excep- 


464  ABBOTTS'  PRACTICE   DIGEST. 


tions  is  made  and  decided  at  a  special  term,  the  latter  court  will  treat  the 
directions  to  have  the  exceptions  heard  at  general  term  in  the  first  instance 
as  waived  by  the  parties,  and  the  decision  made  at  special  term  as  the 
decision  of  the  judge  who  tried  the  cause,  whether  it  was  so  in  fact  or  not. 
Supreme  Ct.,  1864,  Ely  v.  McNight,  30  How.  Pr.,  97. 

40.  Objections  not  raised  on  trial,  which  could  have  been  obviated,  not 
heard  at  general  term.     Supreme  Ct.,  1865,  The  People  v.  Hurlbult,  44 
Barb.,  126. 

41.  Upon  a  second  appeal  to  the  general  term,  the  judgment  should  be  the 
game  as  on  the  first  appeal,  however  much  the  court  may  be  disposed  to 
question  the  decision,  unless  the  appeal  presents  facts  different  from  those 
on  which  the  former  decision  was  founded.     Supreme  Ct.,  1865,  Freeman 
v.  Auld,  44  Barb.,  14. 

42.  That  a  motion  cannot  be  entertained  at  special  term  to  dismiss  an  appeal 
from  an  order  made  at  special  term,  but  such  motion  must  be  made  at  the 
general  term.     People  ex  reL  Larocque  v.  Murphy,  1  Daly,  462. 

43.  Questions  as  to  the  validity  of  a  notice  of  appeal  to  the  county  court, 
for  want  of  a  stamp,  cannot  be  brought  before  the  supreme  court  on  a 
mere  general  appeal  from  the  judgment.     An  appeal  should  be  taken  in 
such  case  from  the  order  of  the  county  court  denying  a  motion  to  dismiss 
the  appeal.     Supreme  Ct.,  1865,  Armstrong  v.  Smith,  44  Barb.,  120. 

44.  Where  an  appeal  has  been  properly  taken,  in  the  marine  court,  from  the 
decision  of  a  single  judge,  to  the  general  term,  no  single  judge  of  the  court 
has  the  power  to  dismiss  the  appeal.     Ct.  of  Appeals,  1865,  Roberts   v. 
Donnell,  31  N.  Y.,  446;  S.  C.,  Ante,  4. 

ERROR  :  HIGHWAYS. 

APPEARANCE. 

It  seems,  that  the  appearance  of  an  attorney  without  authority  is  a  nullity. 
[Reviewing  the  cases.]     Bean  v.  Mather,  1  Daly,  440. 

ARREST. 

1.  No  person  holding  office  under  the  Niagara  Frontier  Police  act  shall  be 
liable  to  militaiy  or  jury  duty,  or  to  arrest  on  civil  process.    Laics  of  1866, 
1075,  ch.  484,  §  30. 

2.  The  exemption  of  a  party  or  witness  from  arrest  is  a  personal  privilege, 
which  can  be  waived ;  and  the  waiver  is  complete  when  the  party  or  wit- 
ness fails  to  claim  it  at  once,  and  does  some  act  in  the  cause  in  reference 
to  his  appearance.     [8  Abb.  Pr.,  416 ;  15  Barb.,  29;  7  Cow.,  356  ;  5  How. 
Pr.,  233;  4  Ball.,  107;  4  Hill,  59;  11  Mas.,  11, 14.]    Thus,  proceeding  to 
justify  bail  is  a  waiver  of  the  objection.  N.  Y.  Com.  Pleas,  1864,  Petrie  v. 
Fitzgerald,  1  Daly,  401. 

3.  Of  the  privilege  of  suitors  and  witnesses  from  arrest.     Ib. 

4.  "Where  the  plaintiff  in  an  action  on  contract  obtains  an  order  of  arrest, 
on  which  the  defendant  is  taken,  the  subsequent  exoneration  of  the  defen- 
dant from  imprisonment  for  debt,  under  the  provisions  of  2  Rev.  Stat.,  30, 
§  10,  precludes  the  plaintiff  from  procuring  a  second  arrest  in  an  action 


KEW  YORK  :  1866.  465 


ASSESSMENT. 


sounding  in  tort,  but  founded  on  the  same  transaction  as  the  alleged  cause 
of  action  on  contract.  N.  Y.  Superior  Ct.,  1866,  Wright  v.  Kitterrnan, 
Ante,  428. 

Thus,  a  fraudulent  purchaser  of  goods,  who  has  been  sued  on  the  contract  of 
sale,  and  arrested  in  the  action  on  the  ground  of  fraud  in  contracting  the 
debt,  cannot,  after  he  has  been  exonerated  for  imprisonment  for  debt,  be 
arrested  in  a  suit  for  damages  for  conversion  of  the  goods.  Ib. 

5.  When  a  defendant  has  been  discharged  from  imprisonment  under  an  or- 
der of  arrest  by  due  course  of  law,  he  should  not  be  re-arrested  and  im- 
prisoned a  second  time,  for  the  same  cause,  though  in  a  different  form  of 
action.     City  Judge  of  N.  Y.,  1866,  People  v.  Kelly,  Ante,  432. 

6.  It  is  not  a  ground  for  setting  aside  an  order  of  arrest  that  the  party  had 
been  arrested  previously  in  the  same  suit,  and  on  the  same  process,  on  an 
election  day.      The  exemption  from  arrest  expires  with  the  day  of  elec- 
tion, and  the  parties  afterwards  stand  towards  each  other  as  if  no  previous 
arrest  had  been  made.     [14  Johns.,  346  •  1  Wend.,  32 ;  5  Id.,  90.]     N.  Y. 
Com.  PI.,  Petrie  v.  Fitzgerald,  1  Daly,  401. 

7.  Under  the  provisions  of  2  Rev.  Stat.,  556,  where  a  defendant  has  been 
arrested  in .  the  action,  the  three  months  within  which  the  plaintiff  must 
charge  him  in  execution  is  from  the  last  day  of  the  special  term  for  non- 
enumerated  motions,  following  that  at  which  judgment  was  obtained.     Su- 
preme Ct,  Sp.  T.,  1865,  Haviland  v.  Kane,  Ante,  409. 

8.  In  an  action  brought  to  recover  the  value  of  chattels  of  the  plaintiff,  con- 
verted by  a  defendant,  it  is  not  ground  for  discharging  an  order  of  arrest 
that  the  defendant  has  a  claim  for  a  larger  amount  against  the  plaintiff. 
prrne  Ct.,  Sp.  T.,  1865,  Huelet  v.  Reyns,  Ante,  27. 

9.  Warrants  of,  throughout  the  State  in  criminal  cases,  may  be  executed  br 
members  of  detective  force  of  Frontier  Police  district.     Laws  0/1866, 107i, 
ch.  434,  |  21. 

10.  A  deserter  is  not  liable  to  arrest  by  any  citizen  without  process.     Supreme 
Ct.,  1865,  Trask  v.  Payne,  43  Barb.,  569. 

11.  An  order  of  the  war  department  authorizing  certain  enumerated  local 
magistrates  and  officers  to  arrest  deserters,  is  to  be  construed  strictly,  and 
does  not  empower  the  deputies  of  such  officers  to  make  the  arrest.      Su- 

'    preme  Ct.,  1865,  Trask  v.  Payne,  43  Barb.,  569. 

12.  Arrests  for  violation  of  provisions  of  Metropolitan  Sanitary  act,  authorized 
and  regulated.    1  Laws  of  1866,  129,  ch.  72,  §  14,  subd.  2  ;  2  Id.,  1462,  ch.  686. 

13.  Officers  of  Niagara  Frontier  Police  may  arrest  without  warrant  in  certain 
cases.    Laws  of  1866, 1073,  ch.  484,  §  23.          , 

ASSESSMENT. 

Where  two  members  of  the  Board  of  Revision  and  Correction  of  Assessments 
meet  and  confirm  an  assessment,  without  the  presence  of  or  notice  to  the 
third,  their  proceedings  are  irregular ;  and  the  irregularity  is  not  cured 
by  a  subsequent  formal  approval  of  the  minutes  when  the  third  member  of 
the  board  was  present,  nor  by  the  Act  of  1861.  Supreme  Ct.,  Sp.  T.,  1865, 
Palmer's  Petition,  Ante,  30 ;  compare  Beekman's  Petition,  19  Abb.  Pr.,  244 
and  Ante,  448. 

NEW  YORK. 

K  S.— VOL.  L— 30. 


466  ABBOTTS'  PRACTICE  DIGEST. 


ATTACHMENT. 


ASSIGNMENT  OF  CAUSE  OF  ACTION. 

1.  A  demand  for  services  is  assignable,  and  may  be  assigned  by  parol ;  and 
such  an  assignment  under  the  Code  of  Procedure  is  sufficient  to  enable  the 
assignee  to  sue  in  his  own  name.     Ct.  of  Appeals,  1864,  Hooker  v.  Eagle 
Bank  of  Rochester,  30  N.  Y.,  83. 

2.  That  a  cause  of  action  against  a  carrier  for  loss  of  a  passenger's  baggage 
is  assignable,  so  as  to  enable  the  assignee  to  sue  in  his  own  name.     Mer- 
rill v.  Grinnell,  30  N.  Y.,  594. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS. 

The  provisions  of  section  2  of  the  Act  of  1860, — respecting  assignments  for 
the  benefit  of  creditors, — Avhich  require  an  assignor,  within  twenty  days 
after  the  date  of  an  assignment,  to  make  and  deliver  to  the  county  judge 
an  inventory  of  his  debts  and  assets, — and  of  section  3, — which  requires  the 
assignee,  within  thirty  days  after  the  date  of  the  assignment,  to  give  bond, 
— are  directory  merely ;  and  an  assignment,  in  other  respects  good,  is  valid, 
and  vests  a  perfect  title  in  the  assignee,  although  not  followed  by  the 
schedule  or  bond  provided  by  the  statute.  [39  Barb.,  97 :  20  How.  Pr., 
289  j  and  distinguishing  16  Abb.  Pr.,  23.]  Supreme  Ct.,  1866,  Van  Vleet  v. 
Slauson,  45  Barb.,  317. 

ATTACHMENT. 

1.  An  attachment  may  be  issued  as  a  provisional  remedy  in  an  action  for  the 
wrongful  conversion  of  personal  property.      2  Laws  of  1866, 1838,  ch.  824, 
§  7  ;  amending  Code  of  Pro.,  §  227. 

2.  It  seems,  that  in  an  action  between  partners  for  a  dissolution  of  the  firm,  an 
accounting,  and  the  payment  of  an  alleged  balance,  an  attachment  cannot 
be  issued,  though  the  defendant  be  charged  with  fraudulently  disposing 
of  the  property  of  the  firm.      Supreme  Ct,,  Sp.   T.,  1865,  Ketchum  v. 
Ketchum,  Ante,  157. 

3 .  Defendant  may  move  to  set  aside  an  attachment  against  his  property  with- 
out putting  in  a  general  appearance  in  the  action,     N,  Y.  Supreme  Ct.,  Sp. 
T.,  1866,  Manice  v.  Gould,  Ante,  255. 

4.  A  mere  creditor  without  judgment,  though  he  has  commenced  an  action, 
and  procured  the  issue  of  an  an  attachment,  cannot  move  to  set  aside  a  prior 
attachment,  irregularly  issued  against  the  property  of  the  same  debtor,  and 
levied  before  his  action  was  commenced.      N.  Y.  Supreme  Ct.,  Sp.  T., 
1865,  Ketchum  v.  Ketchum,  Ante,  157. 

5.  Whether,  after  judgment,  the  regularity  of  the  attachment  can  be  in- 
quired into  in  a  collateral  proceeding,  Quere  ?     Ketchum  v.  Ketchum, 
Ante,  157. 

6.  Section  227  of  the  Code  of  Procedure, — which  authorizes  the  issuing  of  an 
attachment  as  a  provisional  remedy, — amended  by  adding ;  and  for  the  pur- 
pose of  this  section  an  action  shall  be  deemed  commenced  when  the  sum- 
mons is  issued  ;  provided,  however,  that  personal  service  of  such  summons 
shall  bo  made,  or  publication  thereof  commenced  within  thirty  days.  2  Laws 
0/1866, 1888,  ch.  824,  §7. 

CONTEMPT. 


NEW  YOEK:  1866.  467 


BILLS,   NOTES   AND    CHECKS. 


ATTOKNEY  AND    CLIENT. 

1.  Any  regularly  admitted  or  licensed  attorney  or  counselor  of  the  supreme 
court  of  this  State,  aud  whose  office  for  the  transaction  of  law  business  is 
within  this  State,  may  practice  as  such  attorney  or  counselor  in  any  of  the 
courts  of  this  State,  notwithstanding  he  may  reside  iu  a  State  adjoining  the 
State  of  New  York ;  provided  that  service  of  papers,  which  might,  accord- 
ing to  the  practice  of  the  courts  of  this  State,  be  made  upon  said  attorney 
at  his  residence,  if  the  same  were  within  the  State  of  New  York, — shall  be 
sufficient,  if  made  upon  him  by  depositing  the  same  in  the  post-office  in  the 
city  or  town  wherein  the  said  office  is  located,  directed  to  said  attorney  at 
his  office,  and  paying  the  postage  thereon,  and  such  service  shall  be  equiva- 
lent to  a  personal  service  at  the  office  of  such  attorney.    1  Laws  of  1866, 348, 
ch.  175. 

The  act  of  1862,  "  to  authorize  attorneys  of  the  supreme  court  of  this  State  re- 
siding in  adjoining  States,  to  practice  in  the  courts  of  this  State,"  repealed. 
lb.,  %  2. 

2.  That  an  attorney  can  acquire  for  himself,  as  against  his  client,  no  greater 
right  by  the  violation  of  his  duty  than  by  the  performance  of  it.   Where  the 
relation  'exists,  no  infraction  or  evasion  of  its  obligations  can  avail  to  vest 
the  attorney  Avith  any  right,  interest  or  property  which  his  duty  required 
him  to  seek  or  secure  for  his  client.     Supreme  Ct.,  1859,  Cowing  v.  Greene, 
45  Barb.,  585. 

3.  An  attorney  cannot  serve,  professionally,  both  parties  to  a  controversy  ; 
and  where  he  had  been  retained  by  one,  he  cannot  recover  for  professional 
services  rendered  in  the  same  matter  to  the  other.     N.  Y.  Com.  P/.,'Her- 
rick  v.  Catley,  1  Daly,  512 ;  S.  C.,  30  How  Pr.,  £08. 

.     BAIL. 

The  liability  of  bail  remains  the  same  as  it  was  before  the  Code.  Bail,  un- 
der the  old  system,  undertook  to  produce  the  body  of  their  principal,  so 
that  he  should  be  amenable  to  final  process  in  the  action  in  which  they 
became  bail,  whenever  such  process  was  issued.  The  theory  on  which 
they  became  bail  was,  that  the  body  of  the  debtor  was  delivered  into 
their  custody,  and,  carrying  out  that  theory,  bail  were  invested  with  full 
powers  by  the  law,  to  seize  their  principal  at  any  time  and  deliver  him 
up,  in  discharge  of  their  liability.  This  they  were  authorized  to  do  with- 
out process,  and  by  virtue  solely  of  the  relation  existing -between  them  as 
principal  and  bail.  Section  191  of  the  Code  provides  the  mode  in  which 
this  liability  may  be  discharged.  Insolvency  of  the  defendant  does  not 
discharge  nor  diminish  it.  Ct.  of  Appeals,  1865,  Metcalf  v.  Stryker,  31 
N.  Y.,  255. 

BILLS,  NOTES  AND  CHECKS. 

Where  a  creditor  made  a  loan  to  his  debtors  upon  an  agreement  that  they 
would  repay  it  out  of  the  proceeds  of  a  note  for  a  much  larger  amount 
which  they  had  procured  to  be  indorsed  by  a  third  person  for  their  ac- 
commodation, or  would  deliver  the  note  to  him ;  and  the  note  not  being 
discounted,  they  subsequently  delivered  it  to  him,  in  satisfaction  of  the 
loan  and  of  their  prior  indebtedness ; — Held,  that  the  contract  was  to  be 
regarded  as  entire,  and  that  he  had  parted  with  a  new  consideration  sul- 


468  ABBOTTS'   PKACTICE   DIGEST. 


BURDEN   OF    PROOF 


ficient  to  make  the  indorsement  binding.    N.  Y.  Superior  Ct.,  1863,  Smith 
v.  Mulock,  Ante,  375. 

It  seems,  that  the  indorser  in  such  case  would  not  be  exonerated  by  mere 
proof  of  notice  to  the  purchaser  of  the  note,  that  the  partnership  between 
the  makers  had  beeirdissolved  subsequent  to  the  date  of  the  note.  Ib. 

BANKRUPTCY. 

Of  the  requisite  proceedings  to  obtain  a  discharge  under  the  English  insol- 
vent laws ;  and  what  must  be  pleaded  in  setting  up  a  discharge  under 
such  statutes.  N.  Y.  Superior  Ct.,  1865,  Philipe  v.  James,  Ante,  311. 

DISCHARGE. 

BOARD. 

ASSESSMENTS:  LOAN  COMMISSIONERS:  NOTICE. 

BOND. 

1.  A  bond  given  to  discharge  a  vessel  from  an  attachment  under  the  act  of 
1862,  is  not  void  by  reason  of  irregularities  in  the  issuing  of  an  attach- 
ment.    (Per  ROBERTSON,  Ch.  J.)'    N.  Y.  Superior  Ct.,  1866,  Dclaney  v. 
Brett,  Ante,  421. 

2.  Where  one  of  several  defendants,  against  whom  a  personal  judgment  had 
been  recovered,  gave  a  bond  with  sureties,  conditioned  for  the  payment 
of  the  amount  of  the  judgment  whenever  ordered  by  the  final  decision  of 
the  court,  such  bond  being  given  as  a  condition  imposed  by  the  court  for 
refusing  to  appoint  a  receiver  of  specific  property,  upon  which  the  judg- 
ment against  the  defendant  had  been  declared  a  lien; — Held,  that  it  was 
no  defence  to  an  action  on  such  bond,  that,  upon  an  appeal,  the  judgment 
was  subsequently  modified  by  reversing  it  so  far  as  it  imposed  any  personal 
liability  upon  the  defendant  who  gave  such  bond,  and  affirming  it  as  to  tho 
others.     N.  Y.  Superior  Ct.,  1863,  Ford  v.  Townsend,  Ante,  159. 

BOUNTIES. 

The  provisions  of  sections  3  and  4,  of  chapter  29,  of  the  laws  of  1865,  pre- 
scribing a  maximum  payment  for  enlisting  soldiers,  is  void.  Supreme  Ct., 
Sp.  T.,  1865,  Powers  v.  Shepard,  Ante,  129. 

As  the  statute  interferes  with  individual  freedom  of  action,  it  must  be  con 
strued  like  a  penal  statute,  strictly;  and  doe;*  not  therefore  forbid  a  con 
tract  for  the  procurement  of  volunteers  at  a.  higher  price  than  six  hun 
dred  dollars.  16. 

BROOKLYN. 

Provisions  relative  to  the  appointment  of  a  phonographic  reporter,  in  the 
Brooklyn  city  court.  1  Laws  of  1866,  671,  ch.  311. 

BURDEN    OF    PROOF. 
EVIDENCE. 


NEW  YORK :  1866.  469 


CAUSE  OF   ACTIOV. 


CASE 
APPEAL,  21,  24,  32 :  EXCEPTIONS. 

CAUSE  '  OF    ACTION. 

1.  A  cause  of  action  for  damages  for  injuries  to  real  property  by  the  negli- 
gence of  the  defendant,  is  necessarily  local ;  and  the  courts  of  this  State 
have  not  jurisdiction  of  such  an  action  relating  to  real  property  without 
the  State.    N.  Y.  Superior  Ct.,  1863,  Mott  v.  Coddington,  'Ante,  290. 

2.  But  a  cause  of  action  for  breach  of  a  covenant  to  convey  real  property,  is 
transitory ;  and  if  the  courts  of  this  State  obtain  jurisdiction  of  the  parties, 
they  can  entertain  jurisdiction  of  the  action.     Ib. 

3.  An  executrix  received  as  collateral  security  for  the  payment  of  a  personal 
debt  due  to  the  estate,  the  assignment  of  a  mortgage  held  in  trust  by  the 
debtor,  for  which  assignment  there  was  no  legal  consideration  ;  and  col- 
lected the  money  due  on  the  mortgage,  und  distributed  the  same  among  the 
next  of  kin  and  legatees  of  the  estate.  In  an  action  brought  by  the  cestuis  que 
trust  against  the  next  of  kin  and  legatees,  to  recover  the  moneys  thus  dis- 
tributed to  them  • — Held,  1.  That  such  next  of  kin  and  legatees  were 
liable  therefor.     2.  That  the  rights  of  the  parties  were  not  altered  by  the 
fact  that  the  defendants  received  at  the  same  time,  other  moneys  than 
those  arising  out  of  such  mortgage.    3.  That  having  received  the  plaintiffs' 
money  without  giving  value  for  it,  they  were  liable  therefor,  though 
mixed  with  other  money  belonging  to  them  at  the  time  of  receiving  it. 
Ct.  of  Appeals,  1865,  Green  v.  Givan,  33  N.  Y.,  343. 

4.  Where  lands  are  granted  to  a  municipal  corporation  by  the  State,  with  a 
proviso  giving  a  preemptive  right  to  adjoining  owners,  the  State,  only, 
can  re-enter  for  a  breach  of  the  proviso,  by  the  act  of  the  corporation  in 
granting  to  one  who  is  not  the  true  owner  of  the  adjacent  upland ;  and  until 
it  does  so,  such  a  grant  cannot  be  annulled  in  a  collateral  inquiry.    N.  Y. 
Superior  Ct.,  1863,  Towle  v.  Palmer,  Ante,  81. 

5.  Where  persons  are  in  the  actual  use  and  occupation  of  premises  on  which 
mills  are  located,  and  they,  and  these  under  whom  they  claim,  have  been 
in  possession  thereof  for  a  number  of  years,  and  an  adjoining  proprietor 
erects  a  dam  below  such  mills,  upon  the  same  stream,  by  means  of  which 
the  water  is  set  back  upon  the  wheels  in  such  mills,  thereby  reducing  the 
power  thereof  and  injuring  the  mills,  an  action  will  lie  for  damages  by  the 
mill  owners.     Ct.  of  Appeals,  1864,  Brown  v.  Bowen,  30  N.  Y.,  519. 

6.  The  occupant  of  the  premises  injured  by  the  setting  back  of  water  upon 
the  land,  may  recover  damages  against  the  wrong-doer,  to  an  amount  suf- 
licient  to  indemnify  him  for  the  injury  to  such  interest  as  he  had  in  the 
premises.     Ib. 

1.  An  action  will  also  lie  by  the  reversioner,  for  the  injury  done  to  the  in- 
heritance. 16. 

8.  One  whose  goods  are  taken  by  the  sheriff  in  proceedings  of  claim  and 
delivery,  in  an  action  against  a  third  person,  can  maintain  an  action  against 
the  sheriff  for  damages,  notwithstanding  his  having  given  the  sheriff 
notice  of  his  claim,  under  section  216  of  the  Code  of  Procedure,  and  sub- 


470  ABBOTTS'  PRACTICE  DIGEST. 


CAUSE   OF   ACTION. 


eequently  having  withdrawn  it  for  the  purpose  of  permitting  the  sheriff  to 
deliver  the  goods.     N.  Y.  Superior  Ct.,  1863,  Haskins  v.  Kelly,  Ante,  63. 

9.  Where  an  usurious  loan  is  secured  by  a  pledge,  one  who  purchases  the 
thing  pledged  from  the  borrower,  and  agrees  to  pay  the  debt,  is  not  a  bor- 
rower within  the  meaning  of  the  statute  of  1837, — which  allows  borrowers 
on  usury  to  maintain  actions  for  relief  against  their  contracts,  without 
paying,  or  offering  to  pay,  the  principal  or  interest.     N.  Y.  Superior  Ct., 
Beecher  v.  Ackerman,  Ante,  141. 

10.  But  in  an  action  by  the  purchaser  for  relief  from  the  usurious  contract, 
the  complaint  should  not  be  dismissed  at  trial  merely  because  it  does  not 
contain  an  offer  to  pay  what  is  equitably  due,  but  he  may  have  judgment 
for,  such  relief,  conditioned  upon  his  making  such  payment,  with  costs.  Ib. 

11.  Where,  after  such  a  transaction,  the  purchaser  of  the  securities  obtains 
a  further  usurious  loan  from  the  same  lender,  giving  one  note  for  the  total 
amount,  and  pledges  other  property  to  secure  the  whole,  the  property  last 
pledged  cannot  be  retained  by  the  lender  as  security  for  the  original  loa.n. 
Ib. 

12.  Where  securities  are  delivered  and  accepted  in  payment  of  a  usurious 
loan,  with  a  guaranty,  by  the  debtor,  of  the  payment  of  such  securities,  the 
debtor  cannot  recover  back  the  securities ;  but  the  guaranty  is  void,  and 
he  may  compel  the  surrender  of  that.     Ib. 

13.  An  action  will  lie  by  a  partner,  to  enjoin  an  individual  judgment  cred- 
itor or  the  copartner  of  the  plaintiff,  from  selling  upon  execution  the  in- 
terest of  the  copartner  in  the  partnership  assets,  where   it  is  made  to 
appear  by   the  complaint  that  .the  copartner  whoso  interest  has  been 
seized  has  no  interest  in  fact  in  the  assets,  and  the  plaintiff  offers  to  sub- 
mit to  an  accounting  to  show  this  to  be  the  case.      N.    Y.  Com.   Pleas, 
Sp.  T.,  1866,  Turner  v.  Smith,  Ante,  304. 

14.  It  seems,  that  since  the  abolition  of  the  distinction  between  legal  and 
equitable  forms  of  procedure,  the  court  out  of  which  the  execution  was 
issued  should  stay  proceedings  thereon,  under  such  circumstances,  without 
putting  the  parties  to  an  action.     16. 

15.  An  injunction  will  not  lie  at  the  suit  of  the  owner  of  a  wharf  or  bulk- 
head, having  a  mere  easement  in  the  nature  of  wharfage  in  respect  to  the 
land  under  water  in  front  thereof,  to  prevent  $he  erection  of  a  pier   or 
wharf  by  an  adjoining  owner  under  the  sanction  of  public  authority. 
N.  Y.  Supreme  Ct.,  1865,  Taylor  v.  Brookman,  Ante,  169. 

16.  If  injured  by  such  erection,  his  remedy  is  by  an  action  for  damages  for 
the  obstruction  of  his  easement ;  or,  if  he  can  show  title  to  the  land  on 
which  the  erection  is  made,  by  an  action  to  recover  possession  thereof.  Ib. 

17.  Where  the  complaint  alleged  that  the  plaintiff  and  defendant  had  made 
an  oral  agreement  to  carry  on  the  business  of  publishing  books,  to  which 
the  plaintiff'  was  to  contribute  contracts  with  authors,  &c.,  and  was  to  give 
his  personal  attention  for  several  years  at  a  salary,  and  afterwards  to  have 
an  interest  in  the  business,  and  further  alleged  that  under  suoh  agreement 
the  defendant  had  become  possessed  of  the  stereotype  plates  of  certain 
books,  the  right  to  publish  which,  upon  terms  set  forth  in  the  complaint, 
was  contributed  by  the  plaintiff;  but  that  the  defendant  refused  to  per- 


NEW  YOKK:  1866. 


CAUSE   OF  ACTION. 


form  the  agreement  or  to  form  the  business  connection  contemplated,  al- 
though the  plaintiff  had  been  at  all  times  ready  and  willing,  and  had  of- 
fered to  perform ;  and  that  the  defendant  was  proceeding  to  publish  such 
books  in  his  own  name,  denying  that  the  plaintiff  had  any  interest  therein 
and  refusing  to  surrender  the  plates  and  books,  though  the  plaintiff  had 
demanded  them,  and  offered  to  indemnify  him ; — Held,  that  these  facts 
were  sufficient  to  constitute  a  cause  of  action  for  a  surrender  of  the  books 
and  plates,  and  an  accounting.  N.  Y.  Superior  Ct.,  1863,  Redfield  v.  Mid- 
dletou,  Ante,  15. 

18.  The  courts  of  this  State  will  not  entertain  an  action  sounding  in  tort, — 
e.  g.,  an  action  for  damages  for  defrauding  the  plaintiff  by  false  represen- 
tations brought  by  the  citizen  of  one  foreign  State  against  the  citizen  of 
another  foreign  State,  for  the  alleged  injuries  committed  in  one  or  both 
of  the  States.     [14  Johns.,  134;  1  Cow.,  543  ;  17  Wend.,  328;  8  Abb.  Pr., 
318;  6  Id,,  165.]     Supreme  Ct.,  1865,  Latourette  v.  Clark,  45  Barb.,  327; 
S.  C.,  30  Hoic.  Pr.,  242. 

19.  ATI  action  cannot  be  maintained  against  the  city  of  New  York  for  labor  or 
supplies  furnished  for  tne  benefit  of  the  city  by  contract  with  the  city  offi- 
cers, where  no  appropriation  has  been  made  for  the  expense,  and  where  the 
necessity  for  the  work  or  supplies  has  not  been  certified  by  the  head  of  the 
appropriate  department,  and  the  expenditure  authorized  by  the  Common 
Council.      [1  Laws  of  1857,  884,  $  28;  886,  $  38;  Laws  of  1863,  310,  $  3.] 
Ct.  of  Appeals,  1865,  Donovan  v.  Mayor,  &c.,  of  N.  Y.,  33  N.  Y.,  291 ;  re- 
versing S.  C.,  19  Abb.  Pr.,  58. 

20.  An  action  lies  to  recover  back  a  sum  of  money  recovered  under  the  award 
of  public  officers, — e'.  g.,  a  board  of  State  officers,  although  acting  substan- 
tially in  a  judicial  capacity,  where  such  award  was  obtained  by  actual 
fraud  and  imposition  practised  by  the  party  obtaining  it,  upon  the  tribu- 
nal, and  where  the  payment  was  made  before  the  party  making  it  had  dis- 
covered the  fraud.     Ct.  of  Appeals,  1865,  State  of  Michigan  v.  Phoenix 
Bank,  33  N.  Y.,  9. 

21.  The  father,  as  administrator  of  his  infant  son  deceased,  may  maintain  an 
:  action  fo»  damages  occasioned  by  causing  the  death  of  such  infant  by  the 
wrongful  act,  neglect,  and  default  of  the  defendant.      To  warrant  such  re- 
covery under  the  statute,  it  is  not  indispensable  that  the  deceased  should 
leave  him  surviving  "  a  widow  and  next  of  kin."      Ct.  of  Appeals,  1865, 
McMahon  v.  Mayor,  &c.,  of  New  York,  33  N.  Y.,  642. 

22.  An  action,  brought  against  an  out-going  lessee,  to  recover  the  amount 
laid  out  in  putting  a  house  in  repair  under  a  covenant  on  his  part  in  the 
lease  to  leave  the  premises  in  good  order,  is  an  action  upon  the  covenant 
and  not  an  action  in  tort.     N.  Y.  Com.  PI.,  1865,  Hatch  v.  Wolfe,  Ante,  77. 

23.  Where  one  receives,  at  the  request  of  A.,  a  sum  of  money  from  a  third 
person,  with  directions  to  pay  the  same  to  B.,  this  is  equivalent  to  an  ex- 
press promise  to  pay  such  sum  to  B.,  and  the  latter  may  maintain  an  ac- 
tion for  money  had  and  received.  [12  Johns.,  276 ;  1  H.  Black,  229 ;  2  Raym., 
928;  6  Modern  R.,  36;  14  East,  590,  n. ;  2  Camp.  N.  P.  C.,  426;  3  Id., 
109 ;  2  Hilt.,  1 ;  4  Den.,  97.]      No  consideration  between  plaintiff  and  the 
third  person'  need  be  shown.     [17  How.  Pr.,  289].    N.  Y.  Com.  PL,  1861, 
Berry  v.  Mayhew,  1  Daly,  54. 


472  ABBOTTS'.  PEACTICE  DIGEST. 


CKRTIOBARI. 


24.  Under  such  circumstances  it  is  no  defence  that  another  party  claims  the 
same  sum ;  but  the  money  should  be  paid  into  court,  and  such  third  party 
brought  in  by  way  of  interpleader.     Ib. 

25.  Money  paid  on  a  contract,  or  on  a  judgment  recovered  upon  a  contract, 
may  be  recovered  back  in  an  action  therefor,  upon  a  failure  of  considera- 
tion arising  subsequent  to  the  payment,  by  which  the  contract  becomes 
wholly  voidable.      The  judgment  in  such  case  is  not  an  estoppel.      [15 
Mass.,    207.]      A  party  may  be   relieved  in  a   court  of  equity  from 
a  recovery  when  he  can    show  it  to  be  against  conscience    to    exe- 
cute the    judgment,    by    reason    of   some    fact    of    which    he    could 
not  avail    himself    on    the   trial.      [Willard's   Eq.,   356 ;    Story's  Eq., 
M  874,   886,   887;    37   Barb.,    199;    26  How.,  494;    34  Barb.,    515.] 
When  facts  have    arisen    since    a    judgment    was    entered,    of    such 
a  nature  that  it  is  clear  the  judgment  ought  not  to  be  executed,  relief 
against  the  judgment  may  be  given.      Supreme  Ct.,  1866,  Smith  v.  Me- 

•   Cluskey,  45  'Barb.,  610. 

26.  The  law  of  the  country  where  the  action  is  brought  governs  only  the 
remedy,  and  cannot  be  invoked  to  create  a  right,  or  to  make  an  act  tor- 
tious,  which  was  not  such  at  the  time  and  place  of  its  commission.     So 
held,  in  case  of  negligence  causing  death  on  the  high  seas.     Supreme  Ct., 
1805,  Mahler  v.  Norwich  and  New  York  Transportation  Company,  45 
Barb.,  226. 

27.  Long  Island  sound  is  not  within  the  territorial  limits  of  this  State  with- 
in this  rule.     16. 

28.  Under  the  Code  of  Procedure, — which  authorizes  the  assignee  and  owner 
of  a  demand  to  prosecute  for  it  in  his  own  name, — one  to  whom  a  debt  rest- 
ing in  account  is  assigned,  together  with  the  debtor's  note  for  a  portion  of 
the  account,  may  surrender  the  note  and  sue  in  his  own  name  upon  the 
original  demand,  provided  it  was  assigned  to  him  contemporaneously  with 
the  note.     Supreme  Ct.,  1864,  Armstrong  v.  Cushney,  43  Barb.,  340. 

ASSIGNMENT:  COMPLAINT:  COSTS,  6:  CREDITOR'S  SUIT:  ELECTION  OF 
REMEDIES:  EVIDENCE:  INTERPLEADER:  JOINT  LIABILITY:  MALICIOUS 
PROSECUTION  :  MISTAKE  :  PARTIES  :  PLEADING  :  SPECIFIC  PERFORMANCE  : 
UNDERTAKING:  VENDOR  AND  PURCHASER. 

CERTIORARI 

1.  When  a  paity  has  another  adequate  remedy,  he  must  resort  to  it,  rather 
than  to  the  writ  of  certiorari.   [1  Hill,  195  ;  2  Id.,  12.]    Supreme  Ct.,  1865, 
The  People  v.  Overseers  of  the  Poor  of  the  town  of  Berne,  44  Barb.,  467. 

2.  A  board  of  supervisors  in  passing  resolutions  to  provide  for  raising  money 
upon  the  credit  of  the  county,  for  the  use  of  said  county,  or  upon  the  credit 
of  any  town  thereof,  for  the  use  of  such  town,  for  the  purpose  of  paying 
bounties  to  volunteers  into  the  military  or  naval  service  of  the  United 
States,  under  the  authority  given  by  the  act  of  February  8, 1864  (Laws, 
ch.  8),  are  not  acting  in  a  judicial  but  in  a  purely  legislative  capacity,  and 
the  supreme  court  can  neither  affirm  nor  reverse,  or  set  aside,  mere  initi- 
atory resolutions  of  that  character,  or  make  any  order  in  respect  to  them 


NEW  YORK:  1866.  473 


CBKTIORAKI. 


upon  certiorari.      Supreme  Ct,,  1804,  People  v.  Supervisors  of  Livingston 
County,  43  Barb.,  232. 

3.  A  certiorari  will  not  lie  to  bring  up  the  incipient  resolutions  or  proceed- 
ings upon  which  a  tax  may  ultimately  be  based,  before  any  tax  is  laid,  or  _ 
any  final  determination  had  in  the  matter.     If  a  writ  of  certiorari  will  lie 
to  a  board  of  supervisors,  it  is  premature  before  the  proceedings  instituted 
or  pending  are  completed  or  ended.     It  will  only  lie  to  bring  up  the  final 
adjudication  of  such  court  or  tribunal.      [20  Johns..  80;  3  Abb.,  194;  26 
Barb.,  637.]   Supreme  Ct,,  1864,  People  v.  Supervisors  of  Livingston  County, 
43  Barb.,  231. 

4.  A  certiorari  to  review  an  assessment  made  by  the  commissioners  of  taxes 
and  assessments  of  the  city  and  county  of  New  York,  will  not  lie  after  the 
assessment-roll  has  been  delivered  by  the  commissioners  to  the  board  of 
supervisors,  and  the  tax  has  been  collected.      The  statute  gives  the  certio- 
rari as  a  matter  of  right,  and  there  is,  indeed,  in  express  words,  no  limita- 
tion of  the  right  in  point  of  time  ;  but  looking  at  the  whole  statute,  and 
the  purpose  of  the  certiorari,  it  appears  to  be  the  intention  of  the  legisla- 
ture that  the  certiorari  should  be  applied  for,  allowed  and  served,  before 
the  time -fixed  by  the  statute  ($  13)  for  the  assessment-rolls  leaving  the  hands 
of  the  commissioners.      After  that,  the  commissioners  have  no  longer  any 
control  over  the  assessment  complained  of,  and  cannot  correct  or  reduce 
it,  and  it  would  be  a  useless  ceremony  to  reverse  the  act  of  the  commis- 
sioners after  the  assessment-rolls  had  been  delivered  to  the  board  of  su- 
pervisors, and  the  tax  complained  of  had  been  paid  or  collected.    Supreme 
Ct.,  1865,  People  v.  Commissioners  of  Taxes,  43  Barb.,  494. 

5.  A  certiorari  will  not  be  allowed,  for  the  purpose  of  enabling  a  party,  by 
procuring  a  reversal  of  the  proceedings  of  the  commissioners  of  taxes,  to 
recover  back,  by  action,  mr-ney  paid  by  him  for  taxes.     Supreme  Ct.,  1865, 
People  v.  Commissioners  of  Taxes,  43  Barb.,  494. 

6.  It  seems,  that  a  certiorari  would  lie  to  review  an  actual  final  assessment 
of  a  tax,  although  it  is  in  the  discretion  of  the  court  to  issue  or  refuse  it. 
People  v.  Supervisors  of  Livingston  County,  43  Barb.,  232. 

7.  A  certiorari  intended  to  review  an  order  for  commissioners  of  highways, 
directing  the  removal  of  an  encroachment,  which  is  directed  to  the  jury 
instead  of  the  commissioners,  is  a  nullity. 

1.  In  order  to  procure  a  reversal  of  the  order,  it  is  necessary  that  the 
order  should  be  brought  up,  and  made  part  of  the  record.     This  cannot  be 
done  by  a  certiorari  directed  by  (he  jury.      They  have  no  custody  of  itj 
and  could  only  return  upon  any  view  a  mere  narrative  of  the  proceedings 
before  them. 

2.  Such  a  writ  cannot  properly  bring  up  even  the  finding  of  the  jury. 
They  are  no  longer  a  legal  body  after  their  verdict  is  signed,  and  they 
have  separated ;  and  neither  they,  nor  any  one  as  foreman  on  their  behalf, 
can  make  a  return. 

3.  Even  if  the  commissioners  of  highways  voluntarily  appear  and  de- 
fend, no  jurisdiction  can  be  acquired  under  such  a  writ      The  supreme 
court  can  neither  reverse  nor  affirm,  but  should  dismiss  the  writ  with- 


474  ABBOTTS'  PRACTICE  DIGEST. 


out  costs.     Ct.  of  Appeals,  1864,  People  ex  rel.  Huntting  v.  Commissioners 
of  Highways  of  East  Hampton,  30  N.  Y.,  72. 

8.  Where  assessors,  iu  their  return  to  a  certiorari,  state  that  they  have  de- 
livered the  assessment-roll,  duly  certified,  to  the  supervisors  of  the  town, 

*  and  that  the  same  is  not  in  their  possession  or  control,  the  court  has  no 
power  to  render  any  judgment  that  can  affect  the  assessment-roll,  or  correct 
any  errors ;  although  it  is  satisfied  there  was  clear  error  in  the  proceed- 
ings. The  only  remedy  of  the  person  aggrieved  is  by  an  action  against 
the  county,  to  recover  back  the  amount  of  the  tax  improperly  levied.  Su- 
preme  Ct.,  1865,  People  v.  Reddy,  43  Barb.,  539. 

9.  Of  what  the  return  to  a  certiorari  to  review  the  assessment  of  a  tax  should 
contain.     Magee  v.  Cutler,  43  Barb.,  239. 

10.  The  court  will  not  disturb  the  finding  of  the  justice  below  on  a  question 
of  fact  upon  which  the  evidence  before  him  was  conflicting.     Supreme  Ct., 
1865,  People  ex  rel.  Stover  v.  Stiner,  30  How.  Pr.,  129. 

11.  When  the  return  of  the  justice  may  be  set  aside,  or  an  amended  return 
compelled.    Smith  v.  Johnston,  30  How.  Pr.,  374. 

SUMMARY  PROCEEDINGS,  11. 

CHARGE.. 
TRIAL. 

CHATTEL   MORTGAGE, 

1.  It  is  the  duty  of  the  register  to  inVlex  a  chattel  mortgage  duly  filed  -with 
him;  Snd  his  omission  to  do  so  cannot  prejudice  the  lien  of  a  mortgagee 
•who  has  done  all  required  of  him  to  make  the  mortgage  valid.     [18  Barb., 
193.]     N.  Y.  Com.  PL,  1865,  Dikeman  v.  Puckhafer,  Ante,  32. 

2.  Where  the  mortgager  of  chattels  borrows  money  to  buy  in  the  mortgage, 
and  procures  an  assignment  of  it  to  the  lender,  as  security  for  repayment 
of  the  loan,  the  mortgage  becomes,  in  the  hands  of  the  latter,  a  mere  pledge 
for  the  loan,  and  is  discharged  by  a  tender  thereof.      N.  Y.  Superior  Ct., 
1863,  Haskins  v.  Kelly,  Ante,  63. 

DEMAND:  FORECLOSURE,  1. 

CLAIM    AND    DELIVERY. 

1.  Inasmuch  as  the  law  requires  the  sheriff,  upon  an  attachment,  to  take  the 
property  into  his  custody,  the  spirit  of  section  207,  snbd.  4,  of  the  Code  of 
Procedure  must  be  considered  to  forbid  the  use  of  the  provisional  remedy 
for  the  claim  and  delivery  of  personal  property  which  has  been  taken  by 
the  sheriff  on  an  attachment  in  a  former  action,  notwithstanding  the  at- 
tachment upon  which  the  property  was  taken  was  not  against  the  plain- 
tiffs literally,  but  only  against  some  of  them.     Supreme  Ct.,  1864,  Smith  v. 
Orser,  43  Barb.,  187. 

2.  A  requisition  in  proceedings  of  claim  and  delivery  to  recover  possession  of 
goods,  in  an  action  brought  for  the  purpose,  against  one  who  purchased 
them  at  a  wrongful  sale,  will  justify  the  sheriff  in  taking  them,   although 


NEW  YOKK:  1866.  475 


COMPLAINT. 


the  defendant  acted  as  an  agent  in  the  purchase,  if  the  papers  are  served 
and  the  seizure  made  while  the  goods  remain  actually  in  his  possession. 
N.  Y.  Superior  Ct.,  1863,  Haskins  v.  Kelly,  Ante,  63. 

COMPLAINT. 

1  The  complaint  averred  a  fraudulent  agreement  between  the  defendants 
L.  and  L.,  composing  a  copartnership,  and  G.,  to  obtain  goods  on  G.'s 
credit,  on  representations  made  by  L.  of  G.'s  solvency  and  good  standing ; 
and  alleged  that  the  representations  of  L.  to  the  plaintiffs,  and  the  pur- 
chase made  of  the  plaintiffaby  G.,  on  such  representations,  "were  made 
in  pursuance  of  such  fraudulent  agreement,  and  were  a  device  and  contri- 
vance ';  between  L.  and  G.,  to  obtain  the  goods  of  the  plaintiffs  : — Held, 
on  an  appeal  from  judgment  after  verdict,  that,  the  complaint  was  sufficient. 
It  matters  not  what  the  claim  is  termed  in  the  complaint,  or  what  word 
is  employed  by  the  defendant  to  express  the  legal  effect  or  result  of  the 
acts  alleged.  It  is  enough  that  they  form  the  basis  of  a  demand.  Nor 
is  it  necessary  to  aver  that  the  representations  on  which  the  plaintiffs 
parted  with  their  goods  "  were  false."  It  is  sufficient  to  allege  that  they 
were  made  by  the  defendants,  well  knowing  the  truth  to  be  the  converse. 
N.  Y.  Com.  PL,  1861,  Ballard  v.  Lockwood,  1  Daly,  158. 

2.  Where  there  are  several  ^ections  of  a  statute  creating  a  cause  of  action, 
differing  in  their  legal  effect  and  in  the  remedies  provided,  and  the  com- 
plaint in  an  action  under  the  statute  is  so  drawn  that  it  may  include  claims 
under  more  than  one  provision,  the  plaintiff  may  be  required,  on  motion, 
to  make  it  more  definite  and  certain  in  this  respect.     N.  Y.  Com.  PL,  1866, 
Arrieta  v.  Morrisscy,  Ante,  439. 

3.  In  an  action  to  recover  back  money  lost  at  play,  the  complaint  is  obnoxious 
to  a  motion  that  it  be  made  more  definite  and  certain,  unless  it  states  the 
facts  necessary  Jo  show  clearly  under  which  of  the  several  sections  of  the 
statute  of  B  tting  and  Gaming,  the  action  be  brought.     16. 

4.  Section  6  of  the  Laws  of  1860,  ch.  379, — requiring  the  plaintiff,  in  all  ac- 
tions against  the  corporation  of  New  York  city,  to  allege  in  his  complaint 
a  presentment  of  his  claim  to  the  comptroller,  and  the  refusal  of  the  latter 
to  pay  or  adjust  the  same, — is  not  restricted   to  any  particular  class  of 
cases.    It  applies  to  claims  for  damages.    N.  Y.  Com.  PL,  1863,  Russell  v. 
Mayor  of  New  York,  1  Daly,  263. 

5.  To  justify  the  omission  to  join  one  of  several  joint  debtors  as*,  party  de- 
fendant with  the  others,  it  must  appear  by  averments  in  the  complaint, 
which  lead  to  no  other  conclusion,  that  the  legal  obligation  of  such  person 
had  absolutely  ceased.    It  is  not  enough  to  show  that  the  statute  of  limi- 
tations has  run  against  the  omitted  defendant.      N.  Y.  Com.  PL,  1865, 
Hyde  v.  Van  Valkenburg,  1  Daly,  416. 

6.  A  complaint  seeking  to  set  aside  conveyances  and  other  instruments  affect- 
ing real  property,  on  the  ground  that  they  were  obtained  by  fraud,  is  not 
sustained  by  proof  that  they  constitute  a  mortgage  from  which  the  plain- 
tiff has  a  right  to  redeem.      This  is  not  a  mere  variance,  but  a  failure  to« 


476  ABBOTTS'  PRACTICE  DIGEST. 


CONFESSION   OF   JUDGMENT. 


prove  the  cause  of  action  in  its  entire  scope  and  meaning.     N.  Y.  Superior 
Ct.,  1863,  Patterson  v.  Patterson,  Ante,  262. 

CAUSE  OF  ACTION,  10,  13,  17,  19,  28:    INTERPLEADER:    JOIJTDER    OF 
ACTIONS:  MECHANIC'S  LIEN,  7:  PLEADING. 

COMPUTATION  OF  TIME. 
TIME. 

:•-*  :  ' ->: 

CONDITIONS. 

In  determining  whether  a  condition  in  a  dee/I  is  precedent  or  subsequent, 
the  main  test  is  whether  the  vesting  of  the  estate  granted  by  the  instru- 
ment containing  it,  is  postponed  until  the  happening  of  the  contingent 
event  forming  the  condition,  or  is  to  be  divested  by  it.  N.  Y.  Superior  Ct., 
1863,Towle  v.  Palmer,  Ante,  81. 

DEEDS,  1. 

CONFESSION  OF  JUDGMENT. 

1.  A  statement  of  an  indebtedness  for  money  loaned  ; — Held,  sufficient,  not- 
withstanding the  dates  and  amounts  of  the  loans  constituting  one  of  the 
sums  alleged,  were  not  specified  in  detail.1  [20  N.  Y.,  447  ;  22  Id.,  418.] 
Ct.  of  Appeals,  1864,  Frost  v.  Koon,  30  N.  ¥.,  428. 

2  A  statement  in  effect  that  the  defendant  had  purchased  of  the  plaintiff 
a  certain  indebtedness  (describing  it)  due  to  the  plaintiff,  for  which  he  had 
given  to  the  plaintiff  the  promissory  notes  (describing  them)  upon  which, 
and  for  the  amount  of  which  he  confessed  the  judgment,  is  a  sufficient 
statement  to  sustain  such  judgment.  In  such  case  it  is  not  necessary  to 
set  forth  the  consideration  of  the  debt  purchased.  Ct.  of  Appeals,  1865, 
Kirby  v.  Fitzgerald,  31  N.  Y.,  417. 

3.  Statement  for  confession  of  judgment  on  a  promissory  note  upon  which 
the  plaintiff  was  only  contingently  liable  as  indorser ; — Held,  insufficient. 
Ingram  v.  Robbins,  33  N.  Y.,  409. 

4.  Statement  for  confession  of  judgment  on  a  promissory  note  given  for  ar- 
rears of  salary  and  interest  thereon  ',—Held,  sufficient.    Kellogg  v.  Cowing, 
33  N.  Y.,  408. 

5.  A  verification  of  a  statement  for  confession  of  judgment,  which  merely 
states  that  the  party  "  believes  the  above  statement  of  confession  is  true," 
IB  insufficient.      So  held,  wherj  the  facts  contained  in  the  statement  were 
chiefly  within  the  personal  knowledge  of  the  deponent.      Ct.  of  Appeals, 
1865,  Ingram  v.  Robbins,  33  N.  Y.,  409. 

6.  In  requiring  a  party  confessing  judgment  to  verify  the  statement,  the  leg- 
islature intended  that  in  so  far  as  it  related  to  things  within  his  own 
knowledge,  he  should  affirm  it  to  be  true.      A  statement  that  he  believes 
it,  is  something  considerably  short  of  this.    It  is  a  qualification  of  the  direct 
affirmation  of  the  existence  of  the  fact.      Besides,  the  word  is  inappropri- 
ate when  used  in  relation  to  a  fact  which  the  party  either  knows,  or  does 
not  know.    Ct.  of  Appeals,  1865,  Ingram  v.  Robbins,  33  N.  Y.,  409. 


KEW  YOKE:  1866.  477 


CONTEMPT. 


7.  A  verification  in  terms  that  "  the  facts  stated  in  the  above  confession  are 
true,"  is  sufficient.    N.  Y.  Supreme  Ct.,  Sp.  T.,  1865,  Mosher  v.  Heydrich, 
Ante,  258. 

8.  A  judgment  upon  confession  may  be  entered  in  any  county,  without  re- 
striction to  the  county  in  which  the  statement  was  verified.  JV.  Y.  Supreme 
Ct.,  Sp.  T.,  1865,  Mosher  v.  Heydrich,  Ante,  258. 

9.  Where  a  judgment  is  confessed  directly  to  a  third  party,  who  takes  the 
same  in  good  faith  and  for  value,  it  cannot  be  impeached  as  against  him, 
for  fraud  existing  between  the  original  parties  to  the  alleged  indebtedness  ; 
but  this  rule  does  not  apply  where  the  judgment  is  confessed  in  the  first 
instance  to  the  original  creditor,  and  is  assigned  by  him  to  the  third  party 
as  security.     Such  transfer  merely  confers  the  rights  of  an  assignee,  which 
rights  are  subject  to  all  just  defences  which  could  have  been  set  up  against 
the  assignor.     Ct.  of  Appeals,  1865,  Kirby  v.  Fitzgerald,  31  N.  Y.,  417. 

10.  Where  a  statement  for  a  judgment  entered  upon  confession  is  insufficient 
through  mistake  of  the  attorney,  or  is  insufficiently  verified,  but  it  is 
shown  that  the  demand  was  valid,  and  the  statement  made  in  good  faith, 
the  order  on  a  motion  to  vacate,  should  t>e  that  the  plaintiffs,  on  paying 
costs  of  the  motion,  have  leave  to  amend,  by  placing  on  file  a  statement 
properly  verified,  and  that  in  default  of  doing  so,  the  motion  be  granted. 
[27  N.  Y.,  300.]     Ct.  of  Appeals,  1865,  Ingram  v.  Bobbins,  33  N.  Y.,  409. 

CONTEMPT. 

1.  Where  an  attachment  as"  for  a  contempt  is  issued  against  a  party  on  an 
affidavit  taken  before  an  officer  not  authorized  to  take  an  affidavit  at  the 
place  where  it  was  taken,  the  attachment  must  be  regarded  as  issued  with 
out  due  proof  by  affidavit  as  required  by  statute,  and  the  attachment,  and 
all  proceedings  thereunder,  must  be  vacated  and  set  aside,  as  granted 
without  authority,  notwithstanding  sufficient  may  have  appeared  in  the 
party's  answers  to  the  interrogatories  subsequently  filed  without  resorting 
to  the  affidavits  upon  which  the  attachment  was  granted.     The  proceeding 
is  void  from  its  inception.   [11  Wend.,  647.]   N.  Y.  Com.  PL  1865,  People 
ex  rel.  Larocque  v.  Murphy,  1  Daly,  463. 

2.  On  a  motion  to  commit  a  party  for  contempt,  he  should  be  permitted  to 
read,  in  addition  to  his  answers  to  the  interrogatories  propounded  to  him, 
affidavits  negativing  wilful  disobedience  of  the  order  for  the  violation  of 
which  it  is  sought  to  punish  him.    AT.  Y.  Com.  PL,  1865,  People  ex  rel.  La 
rocque  v.  Murphy,  1  Daly,  463.    - 

3.  The  proper  remedy  for  a  party  committed  for  a  contempt  under  a  void 
process,  is  to  move  the  court  upon  affidavits  disclosing  the  fact,  for  an  or- 
der vacating  it,  and  discharging  the  party  ;  and  where  the  judge  who  is- 
sued such  process  is  no  longer  a  member  of  the  court,  the  motion  may  be 
made  before  any  judge  sitting  at  special  term.  Ib. 

4.  The  proper  practice  upon  proceedings  by  attachment  to  punish  for  con- 
tempt, in  disregarding  an  order  to  appear,  and  be  examined  on  supplemen- 
tary proceedings, — stated.  De  Witt  v.  Dennis,  30  How.  Pr.,  131. 


478  ABBOTTS'  PRACTICE  DIGEST. 


CONTRIBUTION. 

Where'a  building  was  insured  in  two  companies,  and  each  policy  contained 
provisions  that  the  company  might  rebuild  instead  of  paying  the  loss,  and 
both  companies  united  in  notifying  the  insured,  after  a  loss,  of  their  inten 
tion  tp  rebuild ; — Held,  in  an  action  brought  against  one  of  the  companies, 
that  the  plaintiff  was  entitled  to  recover  the  full  amount  of  his  damage 
against  such  company,  leaving  it  to  seek  contribution  from  the  other  com- 
pany on  its  own  motion.  Ct.  of  Appeals,  1865,  Morrell  v.  Irving  Fire  In- 
surance Company,  33  N.  Y.,  429. 

.    CORPORATIONS. 

1.  In  no  case,  except  in  respect  to  moneyed  corporations,  or  insolvent  corpo- 
rations, can  a  stockholder  have  a  receiver  appointed,  and  a  preliminary 
injunction,  with  authority  to  take  entire  possession  of  the  corporation, 
and  thereby  work  its  dissolution. 

The  court  has  power  to  restrain  a  corporation,  or  Hs  trustees  or  directors, 
by  injunction,  from  doing  any  act  in  violation  of  its  charter,  or  misapplying 
the  funds  of  the  corporation  ;  but  it  must  be  against  such  specific  acts,  and 
not  to  enjoin  them  from  carrying  on  the  legitimate  business  of  the  corpo- 
ration. Supreme  Ct.,  1865,  Howe  v.  Deuel,  43  Barb.,  504. 

2.  That  the  court  cannot  grant  an  injunction  and  appoint  a  receiver,  which 
will  totally  suspend  the  business  of  the  corporation,  until  after  judgment 
or  decree.    Ib. 

INJUNCTION,  5,  7 :  MUNICIPAL  CORPORATIONS  :  RELIGIOUS  CORPORATIONS. 

COSTS. 

1.  An  agent  for  the  collection  of  negotiable  paper  who  fails  to  take  the 
necessary  steps  to  charge  the  indorsers  thereof,  is  not  liable  to  the  owner 
for  the  costs  of  an  unsuccessful  suit  by  the  latter  against  the  indorsers, 
unless,  by  some  misrepresentation  or  other  act,  he  induced  the  bringing  of 
such  suit.    N.    Y.   Superior  Ct.,  1863,  Ayrault  v.  The  Pacific   Bank, 
Ante,  381. 

2.  Where  the  attorney  of  the  plaintiff  takes  from  him  an  assignment  of  the 
judgment  recovered,  as  collateral  security  for  the  amount  of  costs  he  has 
included  in  such  judgment,  and  the  plaintiff  continues  the  prosecution  of 
the  action  through  an  appeal,  on  which  the  judgment  is  reversed,  the  at- 
torney and  assignee  is  not  liable  for  the  costs.     1.  The  attorney  having  a 
lien  for  the  costs,  his  position  is  not  changed  by  having  that  right  estab- 
lished by  actual  convention.    2.  The  assignment  of  an  interest  in  a  de- 
mand as  collateral  to  a  debt,  the  assignor  continuing  the  prosecution  of 
the  suit  and  remaining  liable  for  the  debt  until  it  is  paid,  does  not  render 
the  assignee  liable  for  costs.   [20  Wend.,  630.]     Ct.  of  Appeals,  1865, 
Wolcott  v.  Holcombe,  31  N.  Y.,  125. 

3.  That  a  judgment  against  an  executor,  dismissing  a  complaint  filed  by  him 
with  costs,  but  containing  no  direction  that  he  shall  pay  the  costs  person- 


NEW  YORK:   1866.  479 


ally,  can  only  be  collected  from  the  assets  in  his  hands  as  executor.      Ct. 
of  Appeals,  1864,  Dodge  v.  Crandall,  30  N.  Y.,  294. 

4.  In  actions  or  proceedings  pending  on  the  26th  of  April,  1866,  if  the  defence 
depend  on  a  deed  by  the  treasurer  and  county  judge  on  a  tax  sale  under 
the  Laws  of  1850,  ch.  298,  the  party  defendant,  or  any  one  of  several  par- 
ties defendant  therein,  may  serve  upon  the  party  plaintiff  an  offer  in  writing 
that  the  party  plaintiff  may  take  judgment  for  the  relief  demanded  in  the 
complaint,  and  then  the  party  plaintiff  shall  not  recover  costs  against  the 
defendant  serving  such  offer  in  writing.    2  Laws  of  1866, 1825,  ch.  820,  §  2. 

5.  Where  the  amount  of  an  offer  under  §  385  of  the  Code,  exceeds,  with  in- 
terest to  the  date  of  the  judgment,  the  amount  of  the  judgment  actually 
recovered,  the  latter,  though  larger  than  the  actual  offer,  is  not  "  a  more 
favorable  judgment,"  within  the  meaning  of  that  section,  and  dots  not 
carry  costs.    Supreme  Ct.,  Sp.  T.,  1865,  Tilman  v.  Keane,  Ante,  23. 

6.  The  action  being  prosecuted  in  the  Supreme  Court  for  the  same  cause, 
and  upon  the  same  pleadings,  and  on  the  trial  the  plaintiff  having  with- 
drawn,  and  abandoned  all  claims  for  acts  done  on  the  road  or  right  of 
way  set  up  by  the  defendant,  and  having  recovered  a  small  verdict  for  the 
other  trespasses  complained  of  on  the  other  portions  of  the  locus  in  quo,  he 
is,  nevertheless,  entitled  to  the  costs  of  the  action.    Because  the  gravamen 
of  the  complaint  is  trespass  quare  clausum  fregit,  and  the  destruction  of 
the  grass,  herbage,  grain  and  vegetables,  are  matters  of  description  and 
aggravation,  and  the  defendant  having  set  up  a  right  of  way  as  to  all  the 
alleged  unlawful  entries  charged,  his  defence  goes  to  the  whole  matter  of 
the  complaint,  and  a  recovery  by  the  plaintiff,  however  small  the  amount, 
entitles  him  to  costs.     Supreme   Ct.,  1865,  Hall  v.  Hodskins,  30  How. 
Pr.,  15. 

7.  On  dismissing  the  complaint  as  against  a  defendant  who  should  not  have 
been  joined,  but  who  was  not  united  in  interest  with  the   defendant  and 
made  a  separate  defence,  the  court  may,  in  their  discretion,  refuse   to 
award  him  costs.     [Code  of  Pro.,  §  306].     Supreme  Ct.,  1865,  Porter  v. 
Mount,  45  Barb.,  422. 

8.  Where  the  complaint  presents  a  prima  facie  case  of  jurisdiction,  and  the 
question  is  not  raised  by  the  issues,  but  the  plaintiff,  on  the  trial,  admits 
the  fact  of  non-residence,  which  shows  the  want  of  jurisdiction,  and  the 
complaint  is  dismissed  on  that  ground,  the  defendant  may  have  a  judg- 
ment for  costs.    The  rule  that  costs  will  not  be  allowed  on  the  dismissal 
of  a  complaint  for  want  of  jurisdiction,  applies  only  in  cases  where  the 
want  of  jurisdiction  appears  on  the  face  of  the  summons  or  complaint,  or 
the  court  is  called  upon  to  adjudicate  the  question  on  plea  or  demurrer. 
N.  Y.  Com.  PL,  1860,  Harriott  v.  N.  J.  R.  R.  &  T.  Co.,  1  Daly,  377. 

9.  Neither  party  should  have  costs  upon  an  appeal,  where  neither  party  en- 
tirely prevails.     Supreme  Ct.,  1865,  Williams  v.  Fitzhugh,  44  Barb.,  321. 

10.  Executors,  chargeable  with  costs  in  the  discretion  of  the  court  for  not 
paying  over  interest.     Dubois  v.  Sauds,  43  Barb.,  412. 

11.  The  provision  of  the  Code  of  Procedure  (Code  of  Pro.,  $  321)  in  respect 
to  the  liability  for  costs  oi  persons  not  parties  to  the  record,  is  broader 
than  the  former  practice  of  the  courts,  or  the  corresponding  provision  of 
the  Revised  Statutes  (2  Rev.  Stat.,  515,  §  47,  2nd  ed.).     It  embrace*  the 


480  ABBOTTS'  PEACTICE  DIGEST. 


COUKTER-CLAIMS. 


case  of  one  defending  an  action  in  the  name  of  the  defendant  on  the  record, 
and  of  a  respondent  on  appeal;  whereas  the  former  law  was  limited  to  one 
prosecuting  in  the  name  of  a  plaintiff  under  such  circumstances.  [18 
"Wend.,  672 ;  19  Id.,  151  j  1  Hill,  646.]  The  Code,  however,  requires  that 
the  cause  of  action  should  have  become  the  property  of  the  person  sought 
to  be  charged,  by  means  of  an  assignment  or  otherwise.  Ct.  of  Appeals,  1865, 
Wolcott  v.  Holcomb,  31  N.  Y.,  125. 

12.  Where  a  senior  mortgage  has  been  foreclosed  without  making  a  junior 
mortgagee  party  to  such  foreclosure  suit,  the  junior  mortgagee  may  redeem 
by  paying  the  mortgage  debt,  principal  and  interest,  without  paying  the 
costs  of  the  previous  foreclosure.      He  is  not  affected  by  the  foreclosure 
suit  to  which  he  was  not  made  a  party,  and  stands  in  relation  to  it,  as 
though  there  had  been  no  such  suit.     Ct.  of  Appeals,  1865,  Gage  v.  Brew- 
ster,  31  'N.  F.,  218. 

13.  Costs  fixed  as  follows :  To  the  plaintiff,  for  all  proceedings  after  notice  and 
before  trial,  fifteen  dollars ;  for  each  additional  defendant  served  with  pro- 
cess, not  exceeding  ten,  two  dollars ;  and  for  each  necessary  defendant  in 
excess  of  that  number,  served  with  process,  one  dollar.     Code  of  Pro.,  §  307, 
subd.  1,  as  amended  by  2  Laws  of  1866, 1840,  ch.  824,  $  11. 

14.  Section  307,  subd.  3,  of  the  Code,  amended  by  adding :  To  the  plaintiff,  for 
the  appointment  of  a  guardian  to  an  infant  defendant,  ten  dollars  ;  but  no 
more  than  ten  dollars  shall  be  allowed  for  the  appointment  of  guardians  in 
any  one  action.     To  the  plaintiff,  for  procuring  an  order  of  injunction,  ten 
dollars.    2  Laws  of  1866, 1840,  ch.  824,  §  11. 

15.  Where,  in  an  action  to  enforce  a  mechanic's  lien  against  several  defend- 
ants who  appear  by  the  same  attorney,  the  complaint  is  dismissed  on  the 
trial,  on  motion,  on  the  ground  that  it  does  not  contain  facts  sufficient  to 
constitute  a  cause  of  action,  without  any  trial  of  the  issues  raised  by  the 
answers,  separate  bills  of  costs  should  not  be  allowed  to  the  defendants 
for  separate  defences  were  not  necessary.     N.  Y.  Com.  PL,  1859,  Bailey  v. 
Johnson,  1  Daly,  61. 

16.  Where  the  question  is  a  new  one,  no  costs  of  motion  are  allowed  to 
either  party.     Supreme  Ct.,  Sp.  T.,  1865.  The  People  v.  Assessors  of  Town 
of  Barton,  44  Barb.,  148. 

17.  What  is  a  reasonable  extra  allowance  in  an  action  of  unusual  character, 
and  involving  $5,000,000.      People  v.  New  York  Central  R.  K.  Co.,  30 
How.  Pr.,  148. 

DISCONTINUANCE:   DISMISSAL  OP  COMPLAINT,  1:   JUSTICE'S  COURT:  .NEW 
TRIAL,  17:   REFERENCE,  2:  SURROGATE'S  COURT,  6,  7:  WITNESS. 

COUNTER-CLAIMS. 

1.  In  an  action  to  compel  defendant  to  deliver  up  bills  of  lading  covering 
goods  consigned  to  the  plaintiff,  a  claim  on  the  part  of  the  defendant  for 
the  price  and  value  of  the  identical  goods  which  are  the  subject  of  the  ac- 
tion, is  a  cause  of  action  arising  out  of  the  transaction  set  forth  in  the  com- 
plaint as  the  foundation  of  the  plaintiff's  claim,  or  is  at  least  connected 
with  the  subject  of  the  action,  and  is  strictly  a  counter-claim,  within  §  150 
of  the  Code  of  Procedure.  Ct.  of  Appeals,  1864,  Thompson  v.  Kessel,  30 
N*Y.,  383. 


NEW  YORK  :  1866.  481 


2.  In  an  action  by  a  vendor  on  a  note  given  for  purchase  money,  the  pur- 
chaser cannot  set  up  as  a  counter-claim,  damages  sustained  by  the  removal 
of  the  building  on  premises  sold,  by  a  tenant  under  a  lease  which  was  out- 
standing at  the  time  of  the  conveyance.      The  purchaser,  as  owner  of  the 
reversion,  has  his  remedy  against  the  lessee  in  an  action  for  waste    [1 
Just.,  51 ;  Kcrr'8  Action  at  L.,  93] ;  or  if  the  lessee  had  a  right  to  take  the 
house  away,  his  remedy  was  upon  the  covenant  in  the  vendor's  deed.     N. 
Y.  Com.  PL,  1861,  Ogilvie  v.  Lightstone,  1  Daly,  129. 

3.  The  redemption  of  a  promissory  note  by  the  pledgor,  on  payment  of  an 
advance  made  upon  it,  will  not  carry  with  it  the  right  of  equitable  set-off 
of  a  claim  against  the  pledgee,  in  a  suit  by  the  pledgor  against  the  maker 
of  the  note.     N.  Y.  Com.  PL,  1862,  Thompson  v.  Harrison,  1  Daly,  302. 

COUNTY  COURT,  2:  PLEADING,  14. 

COUNTY  COUKT. 

1.  The  jurisdiction  of  county  courts  in  an  action  to  foreclose  mortgages  (18 
N.  Y.,  51 ;  17  How.  Pr.,  35)  involves  the  power  to  try  such  actions  in  the 
ordinary  way,  and  in  so  doing  to  entertain  and  dispose  of  all  the  direct 
and  incidental  issues  properly  arising  therein,  to  the  same  extent  in  all 
respects  as  if  the  action  had  been  commenced  in  the  supreme  court.    Otac- 
go  Co.  Ct.,  1865,  Hall  v.  Hall,  30  How.  Pr.,  51. 

2.  Consequently  the  mortgagor  may  set  up  in  defence  a  counter-claim  to  the 
effect  that  the  plaintiff  is  justly  indebted  to  him  arising  upon  contract ; 
and,  therefore,  he  does  not  owe  the  plaintiff  the  sum  claimed  to  be  due  by 
the  bond  and  mortgage ;  to  such  counter-claim  the  plaintiff  may  reply,  set- 
ting up  an  indebtedness  arising  upon  promissory  notes,  and  money  lent  and 
advanced,  and  the  county  court  is  bound  to  dispose  of  these  issues,  although 
it  would  have  no  original  civil  jurisdiction  to  entertain  an  action  brought 
directly  upon  the  claims  involved  therein.     Ib. 

NEW  TRIAL,  2. 

COUNTY  JUDGE. 

1.  County  judges,  though  not  counsellors  of  the  supreme  court,  may  do  what- 
ever acts  supreme  court  commissioners  might  perform  prior  to  the  Constitu- 
tion of  1846.     Supreme  Ct.,  1865,  People  v.  Hurlbult,  44  Barb.,  126. 

2.  A  county  judge  is  authorized  to  let  a  defendant  to  bail,  though  indicted 
for  a  crime  not  cognizable  by  the  court  of  sessions  of  that  county.     [2  N. 
Y.,  84.]     Ib. 

COURTS. 

1.  All  courts,  having  jurisdiction  to  try  offenses  against  the  provisions  of  tin- 
ad  to  regulate  the  sale  of  liquors  in  Metropolitan  Police  district,  shall  in- 
struct and  charge  grand  jurors  to  inquire  into  all  such  offenses,  and  to  indict 
all  offenders.     1  Laws  of  1866, 1242,  ch.  578,  $  24. 

2.  Duty  of,  to  act  promptly  in  cases  arising  under  Metropolitan  Police  act.    1 
Laws  0/-1866, 144,  ch.  72,  §  32 ;  2  Id.,  1462,  ch.  686. 

N.  S.— YOL.  I— 31. 


482  ABBOTTS'  PKACTICE  DIGEST. 


CREDITOR'S  ACTIOK. 


3.  Civil  courts  in  the  city  of  New  York  have  jurisdiction  of  actions  under  Fire 
and  Building  laws.    2  Laws  of  1866,  2029,  ch.  873,  §  35. 

4.  Employment  of  a  stenographer  for  the  supreme  court  circuit,  and  court  of 
oyer  and  terminer,  Kings  county,  authorized.    ^  Laws  of  1866,  923,  ch.  422. 

5.  Employment  of  a  stenographer  for  the  county  court  and  court  of  special  ses- 
sions of  Livingston  county,  authorized.    1  Laws  of  1866,  981,  ch.  437. 

CONTEMPT,  3 :  DISTRICT  COURT  OF  THE  CITY  OF  NEW  YORK  :  HABEAS 
CORPUS:  JURISDICTION:  MARINE  COURT:  SURROGATE'S  COURT. 

COURT  OF  APPEALS. 

APPEAL,  29,  36. 

COURTS-MARTIAL. 

The  restoration  of  peace  after  the  war  for  the  suppression  of  the  rebellion, 
which  was  effected  by  the  revocation  of  the  proclamation  suspending  the 
habeas  corpus,  absolved  all  offences  committed  by  the  public  enemy  during 
the  existence  of  the  war,  and  a  prisoner  could  not  thereafter  be  lawfully 
arraigned  before  a  military  tribunal  for  the  offence  of  being  a  spy,  or  for 
the  offence  of  arson.  Supreme  Ct.,  Chambers,  1865,  Matter  of  Martin,  45 
Barb.,  142. 

COURTS   OF    SPECIAL  SESSIONS. 

1.  Jurisdiction  given  of  offences  under  an  act  to  prevent  unlawful  taking  of 
oysters.    2  Laws  of  1866, 1635,  ch.  753,  §  2. 

2.  Act  increasing  the  powers  and  duties  of  courts  of  special  sessions,  except  in 
the  city  and  county  of  New  York,  and  the  city  of  Albany,  in  respect  to  cer- 
tain otFences.    1  Laws  of  1866, 1018,  ch.  467. 

3.  The  court  of  special  sesions  of  the  peace  in  and  for  the  city  and  county  of 
New  York,  shall  hereafter  be  held  by  the  two  police  justices  elected  re- 
spectively in  the  second  and  sixth  judicial  districts  of  said  city  and  county, 
and  said  justices  shall  exclusively  possess  and  exercise  all  the  powers  here- 
tofore possessed  and  exercised  by  the  said  court  of  special  sessions,  as  the 
said  court  has  been  heretofore  organized  and  held.    The  said  police  justices 
shall  receive  as  compensation  for  the  duties  imposed  upon  them  by  this  act, 
the  sum  of  fifteen  hundred  dollars  per  annum.    1  Laws  of  1866, 911,  ch.  409  ; 
amending  Laws  of  1865, 1132,  ch.  563.* 

JUDGMENT,  3. 

CREDITOR'S  ACTION. 

Where  an  attorney  has  in  his  hands,  or  in  the  hands  of  another,  with  notice 
of  the  rights  of  judgment  creditors,  property  of  judgment  debtors,  his 
clients,  which  he  has  acquired  in  his  capacity  as  attorney,  or  in  violation 
of  his  duties  as  such,  a  court  of  equity  will,  at  the  suit  of  judgment  cred- 
itors, enforce  the  peculiar  trust  which  the  law  raises  upon  ^  ch  state  of 
facts.  Supreme  Ct.,  1859,  Cowing  v.  Greene,  45  Barb.,  589. 
PARTIES,  17:  PLEADING,  6,  7,  11,  12. 


*  The  amendment  relates  only  to  the  compensation. 


NEW  YORK  :  1806.  483 


CRIMINAL  LAW. 

1.  When  the  legislature  enacted  that  county  judges,  when  not  holding  court, 
may  do  whatever  acts  judges  of  the  court  of  common  pleas,  being  of  the 
degree  of  counsellors  of  the  supreme  court,  and  acting  as  supreme  court 
commissioners,  could  do  on  the  12th  cf  May,  1847,  they  conferred  the 
power  on  county  judges  to  let  to  bail  persons  charged  with  crime,  whether 
indicted  or  not,  in  all  cases  where  a  justice  of  the  supreme  court  can  let 
to  bail.     Supreme  Ct.,  1865,  People  t.  Hurlbult,  44  Barb.,  126. 

2.  On  a  writ  of  error,  it  appeared  that  K.  and  M.  were  jointly  indicted  fora 
grand  larceny;  that  K.  pleaded  guilty  of  an  attempt  to  commit  grand  lar- 
ceny, and  was  sentenced ;  and  that  M.  was  then  put  upon  trial,  and  convicted 
of  the  grand  larceny  charged  -.—Held,  that  the  conviction  of  M.  was  good. 
Ct.  of  Appeals,  1864,  Klein  v.  The  People,  31  N.  Y.,  228. 

ARREST,  9-13 :  INDICTMENT  :  SENTENCE  :  WARRANT. 

* 

DAMAGES. 

1.  In  an  action  for  breach  of  promise  of  marriage,  it  is  not  erroneous  for  the 
judge  to  charge  the  jury  that  if  they  find  the  defendant  seduced  the  plaintiff 
under  a  promisa  of  marriage,  it  aggravates  the  damages.      Ct.  of  Appeals, 
1864,  Kniffen  F.  McConnel,  30  N.  Y.,  285. 

2.  In  an  action  against  an  agent  for  breach  of  duty  in  selling  the  property 
of  the  principal  contrary  to  instructions,  the  measure  of  damages  is  to  al- 
low the  plaintiff  the  highest  market  price  of  such  property,  prevailing 
between  the  time  when  the  wrong  was  committed,  and  a  reasonable  time 
thereafter,  within  which  to  commence  an  action.      Ct.  of  Appeals,  1864, 
Scott  v.  Rogers,  31  N.  Y.,  676. 

3.  When  a  sheriff,  who  has  arrested  a  defendant,  becomes  liable  as  bail  for 
his  appearance,  by  neglecting  to  put  in  sufficient  bail,  and  an  action  is  sub- 
sequently brought  against  the  sheriff  for  not  producing  the  body  of  the  de- 
fendant on  an  execution  against  the  person  subsequently  issued  in  the  ac- 
tion, the  sheriff  is  not  allowed  to  show,  even  in  mitigation  of  damages, 
that  the  execution  debtor  was  insolvent.     Ct.  of  Appeals,  1864,  Metcalf  t>. 
Stryker,  31  N.  Y.,  255. 

4.  In  an  action  against  the  sheriff,  as  sheriff,  for  an  escape,  it  is  well  settled 
that  the  insolvency  of  the  debtor  may  be  shown  in  mitigation  of  damages. 
[17  Wend.,  453;  1  Johns.,  215;  7  Id.,  189;  16  Conn.,  555;  10  Mass.,  470; 
16  Id.,  294 ;  11  Id.,  89 ;  3  Den.,  327 ;  1  Hill,  275.J     Ib. 

5.  But  the  rule  is  otherwise  in  an  action  founded  on  the  statutory  liability 
imposed  by  the  Code  upon  the  sheriff  who  neglects  to  require  bail  to  jus- 
tify after  notice  of  exception.      [9  How.  Pr.,  188  ;  10  Abb.  Pr.,  256 ;  1 
Bosw.  &  P.,  456  ;  14  Eas*,  499.]     Ib. 

6.  In  an  action  by  the  tenant  for  life,  for  damages  to  the  estate,  it  is  error  to 
estimate  the  value  of  his  estate  by  the  present  value  of  the  rents  and 
profits  multiplied  by  the  number  of  years'  probable  duration  of  his  life 
without  any  deduction  for  annual  charges,  or  rebate  of  interest  for  the  time 


484:  ABBOTTS'  PKACTICE  DIGEST. 


DEFENCES. 


allowed.      N.  Y.  Superior  Ct.,  Sp.  T.,  1866,  Gfreer  v.  The  Mayor,  &c.,  of 
New  York,  Ante,  206. 

CAUSE  OF  ACTION,  6:  INJUNCTION,  14,  15. 

DEEDS. 

1.  Where  a  municipal  corporation,  owning  lands  under  water,  in  which  the 
proprietors  of  adjacent  upland  had  by  law  a  pre-emptive  right,  granted 
the  same  to  persons  claiming  to  be  such  proprietors,  by  a  deed  which 
bound  the  grantees  to  pay  an  annual  rent,  with  a  right  of  distress  and  re- 
entry by  the  corporation,  on  default,  and  also  bound  the  grantees  to  fill  in 
and  construct  streets,  &c.,  with  a  right  of  re-entry  by  the  corporation,  on 
default,  with  a  further  clause  declaring  that  the  deed  and  the  estate  granted 
were  upon  the  condition,  that  if  at  any  time  thereafter  it  should  appear, 
either  that  the  grantees  were  not,  at  the  date  of  the  grant,  proprietors  of 
the  upland,  or  if  they  should  make  any  default  in  performance  of  their 
covenants,  the  grant  should  be  absolutely  null  and  void,  and  the  grantors 
might  re-enter,  &c.; — Held,  that  this  created  not  a  precedent  but  a  subse- 
quent condition,  as  well  as  to  the  proprietorship  of  the  uplands  as  res- 
pecting the  performance  of  covenants ;  and  upon  its  subsequently  appear- 
ing that  the  grantees  were  not  the  true  proprietors  of  the  upland,  their 
title  was  not  divested  so  as  to  enable  the  true  proprietor,  on  receiving  a 
subsequent  grant  from  the  corporation,  to  recover  the  land  from  the  first 
grantees,  without  the  aid  of  any  proceedings  by  the  corporation  or  the 
State  to  annul  the  first  grant.     N.  Y.  Superior  Ct,  1863,Towle  v.  Palmer, 
Ante,  81. 

2.  Notwithstanding  the  pre-emptive  right,  the  corporation  could  make  such 
first  grant,  subject  to  be  divested  by  State  action,  and  could  not  convey 
their  right  of  entry  for  a  breach  of  the  condition.      (BoswoRTH,  Ch.  J., 
dissented.)     Ib. 

DEFAULT. 
INQUEST:  JUSTICE'S  COURT,  3. 

DEFENCES. 

1.  Where  the  creditor  and  the  principal  debtor  agree  without  the  consent 
of  the  surety,  for  extension  of  time,  the  creditor  is  not  allowed,  in  his  sub- 
sequent action  against  the  surety,  to  set  up  that  the  agreement  for  an  ex- 
tension was  upon  an  usurious  consideration,  and  was  therefore  void  between 
the  parties,  and  that,  being  void  between  them,  it  does  not  exonerate  the 
surety.    Ct.  of  Appeals,  1865,  Billington  v.  Wagoner,  33  N.  Y.,  31. 

2,  The  pendency  of  a  suit  in  rem,  in  the  United  States  court,  against  a  vessel, 
for  advances,  is  no  defence  to  an  action  founded  on  the  lien  of  the  master 
of  the  vessel  on  the  freight,  unless  the 'plaintiffs  had  such  lien  at  the  time 
of  the  commencement  of  the  action  in  rem.    N.  Y.  Com.  PL,  1859,  Sorley 
v.  Brewer,  1  Daly,  79;  affirming  S.  C.,  18  How.  Pr.,  276,  509. 

CAUSE  OF  ACTION,  24:  DISCHARGE,  2:  FORMER  ADJUDICATION:   INSUR- 
ANCE, 4:  JUSTICE'S  COURT,  15:  USURY. 


NEW  YORK:  1866.  485 


DISCHARGE. 


DEMAND. 

1.  An  attorney  in  fact,  who  collects  a  legacy,  is  bound  to  pay  it  over  or  re- 
mit it  without  demand ;  and  no  demand  is  necessary  before  commencing 
an  action  against  him  for  money  received.     [4  Kern  ,  496.]     Supreme  Ct., 
1864,  Power  v.  Hathaway,  43  Barb.,  214. 

2.  Under  a  bond  given  by  the  ageut  of  an  insurance  company,  conditioned 
to  promptly  account  for,  and  pay  over  and  deliver,  all  moneys,  &c.,  which 
might  come  into  hia  hands  as  such  agent,  no  demand  is  necessary  before 
Euit.    Such  an  agent  is  not  a  factor  or  an  attorney  within  the  rule  requir- 
ing a  demand  before  suit  brought.     He  is  bound  to  remit  when  the  moneys 
are  received,  and  the  existence  of  any  custom  allowing  time  does  not  ex- 
tend or  enlarge  the  time  differently  from  what  the  law  made  it,  to  the  in- 
jury of  the  rights  of  the  surety.     Supreme  Ct.,  1864,  Albany  City  Fire  In- 
surance Company  v.  Devendorf,  43  Barb.,  444. 

3.  A  chattel  mortgage  which  does  not  specify  a  time  for  payment  is  due 
immediately,  and  no  demand  for  payment  is  necessary  to  sustain  an  action 
upon  it.     N.  Y.  Com.  PL,  1865,  Dikeman  v.  Puckhafer,  Ante,  32. 

4.  In  an  action  against  sureties,  demand  before  suit : — Held,  unnecessary.  Fox 
v.  Parker,  44  Barb.,  341. 

INDEMNITY  :  SUMMARY  PRO  EEDINGP,  4. 

DEMURRER. 
PARTIES,  18,  19 :  PLEADING,  28, 31. 

DEPOSITION. 

1.  That  a  deposition  cannot  be  excluded  because  the  witness,  in  an  answer, 
refers  to  a  written  contract,  but  the  writing  is  not  produced,  where  the  in- 
terrogatories do  not  call  for,  or  mention  the  contract.     Ct.  of  Appeals,  1864, 
Hooker  v.  Eagle  Bank  of  Rochester,  30  N.  Y.,  83. 

2.  Where  an  original  record  referred  to  in  an  interrogatory  is  out  of  the 
jurisdiction  and  power  of  the  courts,  and  the  court  has  no  power  over  it, 
so  that  it  could  not  be  annexed  to  the  commission,  and  the  court  could  not 
compel  its  production,  a  copy,  proved  to  be  such,  is  admissible.     Supreme 
Ct.,  1865,  Black  v.  Camden  &  Amboy  Railroad  Company,  45  Barb.,  40. 

DISCHARGE. 

1.  The  provision  of  2  Rev.  Stsvt.,  38,  §  19 — relalive  to  discharges,  under  certain 
provisions  of  the  statutes  relative  to  insolvents  and  imprisoned  debtors, — 
amended  by  adding  a  provision  that  all  the  petitions,  affidavits,  schedules, 
inventories,  orders,  and  other  papers  upon  which  any  such  discharge  shall 
be  hereafter  granted,  shall,  within  three  months  from  the  granting  thereof, 
be  filed  and  recorded  by  the  clerk  of  the  county  in  which  the  insolvent  re- 
eided  at  the  time  of  the  presentation  of  his  petition,  or  such  discharge  shall 
be  thereafter  inoperative,  until  such  pnpers  shall  he  duly  filed  and  recorded 
as  aforesaid.  The  record  thereof,  and  a  transcript  of  such  record,  duly  au- 
thenticated, shall  be  presumptive  evidence  of  the  facts  and  proceedings 
therein  contained.  The  clerk  shall  receive  five  cents  per  folio  for  record- 


486  ABBOTTS'  PKACTICE   DIGEST. 


DISMISSAL   Or   COMPLAINT. 


ing  said  papers,  and  no  other  fee  for  filing  the  same.     1  Laws  of  1866,  234. 
ch.  116. 

2.  An  insolvent's  discharge,  granted  under  the  laws  of  this  State,  is  a  good 
defence  in  an  action  on  a  judgment  recovered  here,  in  the  absence  of  any 
evidence  as  to  where  the  contract  was  made  on  which  the  judgment  was 
recovered.    Evidence  that  the  creditor  was  a  non-resident  is  not  material. 
N.  Y.  Superior  Ct.,  1863,  Soule  v.  Chase,  Ante,  48. 

3.  After  a  defendant,  arrested  in  a  civil  action,  has  been  discharged  from 
imprisonment  under  the  statutes  relative  to  insolvents,  the  plaintiffs  can 
not,  by  merely  changing  the  form  of  action  to  a  suit  for  tort,  instead  of  a 
suit  on  contract,  procure  the  arrest  of  the  defendant  in  another  court,  for 
the  same  cause,  for  the  purpose  of  evading  the  force  and  effect  of  his  dis- 
charge, and  thereby  defeating  the  clear  intendment  of  the  statute.      City 
Judge  ofN.  Y.,  1866,  People  v.  Kelly,  Ante,  432;  to  the  same  effect,  N. 
Y.  Superior  Ct.,  1866,  Wright  v.  Ritterman,  Ante,  428. 

EXECUTION,  7,  8. 

DISCONTINUANCE. 

In  actions  or  proceedings  pending  on  the  26th  of  April,  1866,  if  the  defence 
depends  on  a  deed  by  the  treasurer  and  county  judge,  on  a  tax  sale  under 
the  Laws  of  1850,  ch.  298,  the  party  plaintiff  therein  may  discontinue  the 
same,  without  costs  to  the  adverse  party.  2  Lairs  of  1866, 1825,  ch.  820,  §  2. 

DISCOVERY  AND  INSPECTION. 

1.  The  provision  of  section  388  of  the  Code  of  Procedure — that  the  court  be- 
fore which  an  action  is  pending,  or  a  judge  or  justice  thereof,  may  in 
their  discretion,  and  upon  due  notice,  order  either  party  to  give  to  the 
other,  within  a  specified  time,  an  inspection  and  copy,  or  permission  to 
take  a  copy,  of  any  books,  papers,  and  documents,  in  his  possession  or  un- 
der his  control,  containing  evidence  relating  to  the  merits  of  the  action  or 
the  defence  therein, — does  not  sanction  an  order  requiring  either  party 
to  disclose  evidence  which  he  intends  to  introduce  against  his  adversary. 
N.  Y.  Superior  Ct.,  1865,  Strong  v.  Strong,  Ante,  233. 

2.  In  the  affidavit  or  petition  for  a  discovery  of 'books  and  papers,  a  statement 
of  the  advice  of  counsel  and  belief  of  the  deponent  is  not  alone  sufficient.  Ib. 

DISMISSAL  OF  COMPLAINT. 

1.  Where,  after  service  of  a  summons  and  complaint,  the  defendant  obtains 
an  order  staying  the  plaintiff's  proceedings  until  former  costs  are  paid, 
and  the  defendant  has  not  paid  the  costs,  and  the  stay  remains  in  force, 
the  defendant  cannot  move  to  dismiss  the  complaint  for  want  of  prosecu- 
tion.   N.  Y.  Superior  Ct.,  1866,  Unger  v.  Forty-second  street  Railroad 
Company,  30  How.  Pr.,  443. 

2.  If  it  appear  on  the  whole  case  at  the  close  of  the  proof  in  an  action  for 
slander,  in  charging  perjury  in  a  former  action,  that  the  testimony  charged 
to  have  been  perjury  was  wholly  immaterial,  or  that  the  part  of  it  to  which 
the  charge  of  perjury  related,  if  it  related  to  part  only,  was  immaterial, 


NEW  YORK:  1866.  487 


DISTRICT   COURTS. 


the  defendant  is  entitled  to  a  dismissal  of  the  complaint.     N.  Y.  Supreme 
Ct.,  Sp.  T.,  1866,  Wilbur  v.  Ostrom,  Ante,  275. 

3.  In  an  action  against  the  corporation  of  the  city  of  New  York,  the  defend- 
ants set  up  in  their  answer,  as  a  distinct  ground  of  defence,  the  fact  that 
the  complaint  did  not  contain  the  allegation  of  a  presentment  of  demand 
to  the  comptroller  as  required  by  the  statute ; — Held,  that  a  motion  on 
the  trial  to  dismiss  the  complaint  on  the  ground  of  such  omission  should 
have  been  granted,  and  that,  having  been  denied,  the  objection  was  avail- 
able on  appeal.    N.  Y.  Com.  PL,  1863,  Russell  v.  Mayor  of  New  York,  1 
Daly,  263. 

4.  Where,  in  an  action  to  enforce  a  mechanic's  lien,  the  complaint  fails  in 
the  requisite  allegations  to  show  a  case  under  the  statute,  it  is  proper  to 
dismiss  the  case  at  the  trial.       N.  Y.  Com.  PL,  1859,  Bailey  v.  Johnson,  1 
Daly,  61. 

CAUSE  OF  ACTION,  10 :  COSTS,  7:  MARINE  COURT,  7,  9:  NONSUIT:  PLEAD- 
ING, 32:   TRIAL,  7:  VARIANCE. 

DISTRICT  ATTORNEY. 

1.  Of  the  powers  of  district  attorneys  in  controlling  prosecutions.    The  Peo- 
ple v.  Strong,  Ante,  244. 

2.  Duty  of,  to  act  promptly  in  cases  arising  under  Metropolitan  Police  act.    1 
Laws  of  1866, 144,  ch.  72,  §  32. 

3.  District  attorney  of  Albany  may  appoint  an  assistant.  2  Laws  of  1866, 1574, 
cb..  734 

DISTRICT  COURTS  OF  THE  CITY   OF  NEW  YORK. 

1.  Terms  of  office  of  the  justice  and  clerk  of  the  district  court  for  the  Eighth 
Judicial  District  in  the  city  of  New  York,  extended.     Selection  of  their  suc- 
cessors provided  for.    1  Laws  of  1866,  471,  ch.  217. 

2.  In  an  action  for  injuries  arising  from  the  defendant's  negligence  in  not  re- 
pairing a  pier  in  his  possession,  though    some  evidence  be  given   to 
show  that  he  has  parted  with  the  title  to  the  pier,  the  question  of  title  is 
not  to  be  regarded  as  raised,  so  as  to  have  the  effect  of  ousting  the  district 
or  justice's  court  of  its  jurisdiction.    N.  Y.  Com.  PL,  1865,  Cannavan  ti. 
Conklin,  Ante,  271. 

3.  The  statute  is  imperative,  that  when  it  appears  upon  the  trial,  in  a  dis- 
trict court,  that  the  plaintiff  is  not  a  resident,  and  has  filed  no  security,  the 
complaint  must  be  dismissed.     [7  Abb.  Pr.,  421.]     N.  Y.  Com.  PL,  1860, 
Dean  v.  Cannon,  1  Daly,  34. 

4.  And  it  does  not  alter  the  rule,  that  the  fact  of  non-residence  and  failure 
to  file  security,  appear,  for  the  first  time,  upon  a  new  trial,  ordered  by  the 
appellate  court.    Ib. 

5.  An  appeal  from  a  district  court  of  the  city  of  New  York,  is  to  be  taken 
to  the  General  Term  of  the  Court  of  Common  Pleas  in  that  city :  and  the 
provision  of  the  Ac*;  of  1862,  authorizing  a  new  trial  in  the  county  court 
of  cases  tried  in  the  justice's  court,  does  not  apply  to  the  courts  in  the 
the  city  of  New  York.    2V.  Y.  Com.  Pleas.,  1863,  Mcllhenny  v.  Wasson,  1 
Daly,  285. 


488  ABBOTTS'  PRACTICE  DIGEST. 

ERJIOR  (WRIT  or). 

6.  It  is  not  necessary  that  the  undertaking  given  upon  obtaining  a  stay 
of  execution  under  section  356  of  the  Code,  should  embrace  the  undertak- 
ing required  by  section  354  to  perfect  an  appeal  from  a  district  court.  N. 
Y.  Com.  Pl.y  I860,  Sperling  v.  Levy,  1  Daly,  95. 

EJECTMENT. 

The  provision  of  2  Rev.  Stat.,  307,  $  29, — which  requires  that  "  when  the  ac- 
tion is  against  several  defendants,  if  it  appear  on  the  trial  that  any  of 
them  occupy  distinct  parcels  in  several ty,  or  jointly,  and  that  other  de 
fendants  occupy  distinct  parcels  in  severalty  or  jointly,  the  plaintiff  shall 
elect  against  which  he  shall  proceed ;  which  election  shall  be  made  before 
the  testimony  in  the  cause  shall  be  deemed  closed ;  and  a  verdict  shall 
be  rendered  for  the  defendants  not  so  proceeded  against," — is  not  repealed 
by  the  Code  of  Procedure.  It  relates  to  the  subject-matter  of  the  action, 
and  is  retained  in  force  by  section  455  of  the  Code.  Supreme  Ct.,  1865, 
Dillaye  v.  Wilson,  43  Barb.,  261. 

ELECTION  OF  REMEDIES. 

1.  Where  the  gist  of  the  transaction  is  a  tort,  if  it  arises  out  of  a  contract, 
the  plaintiff  may  declare  in  tort  or  contract,  at  his  election ;  but,  having 
made  his  election,  he  is  bound  by  it.      City  Judge  of  N.  Y.,  1866,  People 
v.  Kelly,  Ante,  432. 

2.  Where  the  creditor  holds  the  bill  or  note  of  his  debtor  only,  he  is  not 
bound,  upon  suing  on  the  original  demand,  to  give  up  the  note  before  the 
commencement  of  the  action.      That  is  only  required  when  the  suit  pro- 
ceeds on  the  basis  of  a  rescission  of  the  contract.    While  the  debtor's  note 
remains  in  the  hands  of  the  original  creditor,  it  merely  suspends  the  rem- 
edy on  the  original  demand  until  its  maturity ;  and  then  the  creditor  has 
his  election  to  sue  upon  the  note,  or  upon  the  original  indebtedness.    And 
when  he  sues  upon  the  original  demand,  it  is  sufficient  for  him  to  produce 
and  surrender  the  note  upon  the  trial.      Supreme  Ct.,  1864,  Armstrong  v. 
Cushney,  43  Barb.,  340. 

PLEADING,  9. 

ERROR,  (WRIT  OF.) 

1.  On  a  writ  of  error  in  a  criminal  case,  the  default  of  the  defendant  in  the 
supreme  court  does  not  entitle  the  district  attorney  to  a  reversal  of  the 
proceedings  in  the  court  of  sessions,  as  a  matter  of  course.    It  is  the  duty 
of  the  court  to  determine  the  case  upon  the  writ  of  error,  and  the  return 
thereto,  in  the  same  manner  it  would  if  the  defendant  had  appeared  and 
argued  the  case  in  person  or  by  counsel.      Supreme  Ct.,  1866,  People  v. 
Tarbox,  30  How.  Pr.,  318. 

2.  It  is  essential  to  constitute  a  record  that  the  judge  of  the  court  should 
sign  it ;  and  without  such  signature  it  is  not  record ;  and  a  writ  of  error 
brought  to  reverse  it,  should  be  dismissed  for  want  of  any  record  upon 


NEW  YORK:   1866.  489 


which  the  court  can  act;* — So  held,  where  the  alleged  record  vras  signed 
by  the  district  attorney  instead  of  the  judge.  Ct.  of  Appeals,  1865,  Weed 
v.  People,  31  N.  Y.,  465. 

8.  Admission  of  irrelevant  testimony  not  error,  if  it  is  afterward  made  per- 
tineut  by  other  testimony.  Supreme  Ct.,  1865,  Black  v.  Camden  &  Amboy 
Railroad  Company,  45  Barb.,  40. 

CRIMINAL  LAW,  2. 

ESTOPPEL. 

A  prior  incumbrancer  of  premises  covered  by  a  mortgage, — Held,  not 
estoppel,  in  a  peculiar  case,  by  the  record  of  the  foreclosure  proceedings; 
nor  by  permitting  a  sale  to  take  place  without  interposing  objection. 
Frost  v.  Koon,  30  N.  Y.,  428. 

EVIDENCE. 

1.  Judicial  Notice  :  Presumptions. 

1.  That  the  rule  that  courts  may  take  judicial  notice  of  whatever  ought  to 
be  generally  known,  within   the   limits   of  their  jurisdiction,  includes 
notice  cf  the  great  lines  of  public  travel  and  transportation  of  property, 
and  their  connection  with  each  other,  and  the  general  course  of  trade  and 
transportation  through  the  country.     Supreme  Ct.,  1864,  Smith  v.  New 
York  Central  R.  R.  Co.,  43  Barb.,  225. 

2.  In  any  suit  under  the  provisions  of  the  Metropolitan  Sanitary  Act,  tlie  right 
of  the  Health  Board,  or  the  Board  of  Police,  to  make  any  order,  or  cause 
the  execution  thereof,  shall  be  presumed.     1  Laws  of  IbGij,  128,  ch.  72,  §  14, 
subcl.  2. 

3.  A  license  to  enter  premises,  upon  which  one  has  for  years  been  in  the 
habit  of  visiting,  may  be  presumed.     Supreme  Ct.,  1865,  Martin  v.  Hough- 
ton,  Ante,  339. 

4.  Evidence  as  to  the  length  of  time  a  path  had  existed  which  was  used  for 
BO  entering  is  pertinent.     Supreme  Ct.,  1865,  Martin  v.  Houghton,   Ante, 
339. 

5.  It  will  be  presumed  that  the  requisite   undertaking  was  given  by  the 
creditor  on  issuing  an  attachment  against  a  vessel,  especially  where  the 
warrant  recites  that  this  was  done.    N.  Y.  Superior  Ct.,  1866,  Delaney  v. 
Brett,  Ante,  421. 

6.  In  order  to  warrant  a  conviction  of  a  licensed  tavern-keeper,  under  the, 
act  of  1857,  ch.  628,  for  selling  liquors  at  his  bar,  on  Sunday,  proof  must 
be  made  of  an  intent,  on  the  part  of  the  defendant,  to  violate  the  statute. 
Where  sale  is  not  made  by  the  defendant  personally,  or  in  his  presence,  the 
presumption  of  his  innocence  is  not  overcome  by  merely  showing  that  the 
sale  was  made  on  his  premises,  by  his  bar-tender,  unless  the  evidence 
also  shows  that  the  defendant  in  some  manner  participated  in  it,  connived 

*  The  case  is  obscurely  reported,  but  th?  above  appears  to  have  been  one 
of  the  poiuts  decided. 


490  ABBOTTS'    PRACTICE   DIGEST. 


EVIDENCE 


at  it,  or  assented  to  it.     Supreme    Ct.,  1865,  The   People  v.  Utter,  44 
Barb.,  170. 

7.  The  question  whether  he  assented,  is  one  of  fact,  and  not  of  legal  pre- 
sumption, and  it  belongs  to  the  jury.     Ib. 

8.  Where  an  infant  has  purchased  real  estate,  and  continued  in  possession, 
and  exercised  rights  of  ownership  after  becoming  of  full  age,  he  will  be 
deemed  thereby  to  have  ratified  the  contract  of  purchase,  and  may  be 
held  liable,  upon  his  promissory  note  given  while  under  age,  for  the  pur- 
chase money.     Ct.  of  Appeals,  1805,  Henry  v.  Hoot,  33  N.  Y.,  52G. 

9.  It  is  not  necessary  that  an  express  promise  +o  pay,  made  after  defendant 
became  of  age,  should  be  shown.     [Reviewing  many  cases.]     16. 

10.  Where  it  was  the  duty  of  an  officer  making  a  judicial  sale  of  land  to  sell 
in  parcels,  the  presumption  is  that  he  did  so.     Ct.  of  Appeals,  1805,  Leland  v 
Cameron,  31  N.  Y.,  115. 

11.  In  an  action  by  the  true  owner  of  the  adjacent  lands,  to  recover  lands 
.under  water,  to  which  he  had  a  preemptive  right,  but  which  have  been 
granted  to  other  persons,  who  claimed  to  be  owners  of  the  adjacent  lands, 
evidence  of  his  recovery  of  the  adjacent  lands  against  strangers  is  not 
irrelevant,  he  being  required  to  establish  his  title  independently  of  such 
recovery.     N.  Y.  Superior  Ct.,  1863,  Towle  v.  Palmer,  Ante,  81. 

12.  That  possession  of  real  property  is  to  be  presumed  lawful.      Ct.  of  Ap- 
peals, ,1864,  Brown  v.  Bowen,  30  N.  Y.,  519. 

13.  Production  by  the  plaintiff  of  a  promissory  note  bearing  the  indorsement 
of  the  payee  ; — Held,  sufficient  presumptive  evidence  to  sustain  allegations 
of  a  gift  of  the  note  to  the  plaintiff.     Ct.  of  Appeals,  1865,  Bedell  v.  Carll, 
33  N.  Y.,  581. 

14.  The  possession  of  a  promissory  note  by  the  plaintiff,  indorsed  in  blank 
by  the  payee  thereof,  is  prima  facie  proof  of  ownership,  and  sufficient,  in 
the  absence  of  other  evidence,  to  entitle  the  holder  to  recover  on  proving 
the  indorsement,  &c. ;  allegations  in  the  complaint  as  to  how  the  holder  ac- 
quired title  thereto  from  the  payee  are  unnecessary,  and  need  not  be  proved. 
Ct.  of  Appeals,  1865,  Bedell  v.  Carll,  33  JV.  Y.,  581. 

15.  When  a  recognizance  had  upon  it  this  indorsement :  "  Filed,  February 
25th,  1863,"  not  signed  by  any  one  ; — Held,  that  the  presumption  was,  that 
the  paper  was  filed  in  the  office  of  the  clerk  of  the  county  where  the  pris- 
oner was  let  to  bail.      Supreme  Ct.,  1865,  The  People  t'.  Hurlbult,  44 
Barb.,  120. 

16.  All  the  parts  of  a  connected  correspondence,  having  relation  to  the  same 
subject,  may  undoubtedly  become  evidence,  where  one  part  is  introduced; 
but  it  is  not  to  be  assumed  that  friendly  letters  between  intimate  connec- 
tions form  a  series,  nor  is  there  any  presumption  that  the  subject  of  such 
successive  letters  is  the  same.     JV.  Y.  Superior  Ct.t  1865,  Strong  v.  Strong, 
Ante,  233. 

2.  Burden  of  Proof. 

17.  Upon  an  application  to  charge  an  assignee  of  a  demand  in  suit,  who  is 
not  a  party  to  the  suit,  with  the  costs,  the  moving  party  holds  the  affirma- 
tive, and  is  bound  to  establish  the  necessary  facts  by  satisfactory  evidence. 
Ct.  of  Appeals,  1865,  Wolcott  v.  Holcombe,  31  N.  Y.,  125. 


NEW  YORK :  1866.  491 


KVIDKXCK. 


18.  Where  property  is  delivered  to  a  railroad  company,  to  be  transported  by 
that  and  another  company  over  their  respective  roads,  to  its  place  of  des- 
tination, it  is  enough  for  the  owner,  in  an  action  against  the  company  de- 
livering the  property,  to  recover  damages  for  negligence,  to  show  that  he 
delivered  the  property  to  the  first  company  in  good  order  •  and  the  bur- 
then is  then  cast  upon  the  company  delivering  the  goods  thus  injured,  of 
proving  that  they  were  not  injured  while  in  its  possession,  or  that  they 
came  into  its  possession  thus  injured.     It  is  true  that  the  owner  must  give 
sufficient  evidence  to  show  that  the  goods  were  in  a  good  condition  when 
they  came  to  the  possession  of  the  defendant,  as  a  part  of  the  evidence 
that  they  have  been  injured  while  in  his  custody ;  but  this  may  be  shown 
by  proof  of  facts,  and  circumstances  from  which  the  presumption  of  fact 
arises  that  the  goods  were  in  a  proper  condition  when  the  carrier  received 
them.    Supreme  Ct.,  1864,  Smith  v.  New  York  Central  Railroad  Company, 
43  Barb.,  225 

19.  The  general  rule  is,  that  things  once  proved  to  have  existed  in  a  partic- 
ular state,  are  to  be  presumed  to  have  continued  in  that  state  until  the 
contrary  is  established  by  evidence  either  direct  or  presumptive.      [Best, 
on  Presumptions,  $  136 ;  4  Den.,  431 ;  9  Barb.,  271;  22  Id.,  516.]      This 
rule  is  to  be  applied  to  the  question  of  the  condition  of  the  goods  delivered, 
to  be  transported  over  several  connecting  railroads ;  otherwise  there  would 
be  no  safety  to  the  owner.    It  would  often  be  impossible  for  him  to  prove 
at  what  point  or  in  the  hands  of  which  company,  the  injury  happened. 
But  give  to  such  party  the  benefit  of  the  presumption  that  the  goods  he 
delivered  in  good  order  in  such  case,  continued  so  until  they  came  to  the 
possession  of  the  company  which  delivers  them  at  the  place  of  destination 
in  a  damaged  condition,  and  his  rights  will  bo  completely  protected.    Su- 
preme Ct.,  1864,  Smith  v.  New  York  Central  Railroad  Company,  43 
Barb.,  225. 

3.  Best  and  Secondary  Evidence. 

20.  It  was  shown  that  search  had  been  made  in  the  clerk's  office  for  an  exe- 
cution, and  none  could  be  found ;  that  the  person  then  sheriff  had  had  his 
house  burned — removed,  and  died,  and  that  on  inquiry  of  the  members  of 
the  family,  it  could  not  be  found  ; — Held,  that  this  was  sufficient  evidence 
of  loss  to  admit  secondary  evidence  of  the  contents  of  the  execution.    But 
it  was  necessary  to  show  that  an  execution  was  issued  to  the  sheriff.      Ct. 
of  Appeals,  1865,  Lelaud  v.  Cameron,  31  N.  Y.,  115. 

21.  The  proof  of  the  loss  of  papers,  to  admit  secondary  evidence  of  their  con- 
tents, is  a  preliminary  matter  addressed  to  the  court  exclusively,  and  its 
sufficiency  is  to  be  passed  on  by  the  court,  in  view  of  the  peculiar  features 
of  each  case.     Supreme  Ct.,  1865,  Graham  v.  Chrystal,  Ante,  121. 

4.  Opinions  of  Witnesses. 

22.  A  witness  cannot  be  asked  whether  he  would  have  endorsed  a  note  if  he 
had  not  had  certain  eecurity.      Such  a  question  calls  for  the  operation  of 
the  mind  of  the  witness,  and  not  for  facts.  Ct.  of  Appeals,  1865,  Newell  v. 
Doty,  33  N.  Y.,  83,  94. 


492  ABBOTTS'  PRACTICE  DIGEST. 


KVIDENCE. 


23.  Opinions  of  witnesses  may  bo  received  as  to  the  value  of  chattels,  and  a 
witness  who  has  been  in  this  country  five  years  may  be  allowed  to  testify 
as  to  the  value  of  the  contents  of  a  trunk,  from  knowledge  acquired  since 
he  came  to  this  country,  and  to  prove  that  he  has  made  inquiries  here  as 
to  the  value  of  articles  of  that  kind.      Ct.  of  Appeals,  1864,  Merrill  v. 
Grinnell,  30  N.  Y.,  594. 

24.  In  an  action  to  recover  damages  for  personal  injuries,  medical  men  may 
be  called  as  witnesses  to  express  their  opinions  as  to  the  permanency  of 
the  injury.   Ct,  of  Appeals,  1865,  Bucll  v.  New  York  Central  Railroad  Com- 
pany, 31  N.  Y.,  314. 

25.  In  an  action  for  a  breach  of  warranty  of  cattle,  it  is  not  competent  for  a 
witness,  not  an  expert,  to  state  that  the  cattle  were  of  a  disorderly  charac- 
ter.    Supreme  Ct.,  1864,  Strevel  v.  Hempstead,  44  Barb.,  518. 

26.  It  is  not  competent  for  a  witness  to  testify  that  in  his  opinion  crops  were 
"  damaged  one  hundred  dollars."      He  should  be  confined  to  stating  the 
quantity  of  hops,  oats,  buckwheat,  &c.,  the  fields  would  have  produced,  if 
the  defendant's  cattle  had  not  trespassed  upon  them,  and  how  much  less 
each  field  would  produce  in  consequence  of  the  injury  done  them  by  the 
cattle  of  the  defendant :  and  might  have  followed  up  such  statements  with 
other  facts,  until  his  final  conclusions  would  approximately  show  the 
amount  of  damages  the  plaintiff  had  sustained;  and  it  would  also  be 
proper  for  the  witness  to  state  the  market  value  of  the  crops  if  they  had 
not  been  injured.     [Citing  many  cases.]     Supreme  Ct.,  1865,  Armstrong  v. 
Smith,  44  Barb.,  120. 

27.  In  an  action  for  malicious  prosecution  in  instituting  a  complaint  for 
perjury  against  the  plaintiff,  the  defendant  may  be  asked  as  a  witness  in 
his  own  behalf,  whether  he  believed  that  the  testimony  of  the  plaintiff, 
charged  to  be  perjury,  was  material  to  the  proceeding  in  which  it  was 
given;  and  whether,  when  he  made  the  charge,  he  believed  that  the 
plaintiff  had  been  guilty  of  the  offence.    His  answer,  if  in  the  affirmative, 
would  tend  directly  to  disprove  malice,  and  perhaps  to  show  probable 
cause.    How  much  weight  the  jury  would  give  to  such  testimony  from 
the  defendant  himself,  is  a  question  exclusively  for  them.    But  the  testi- 
mony is  not  incompetent.     [14  N.  Y.  (4  Kern.),  567  ;  21  N.  Y.,  121 ;  25 
N.  Y.,  530,  439.]    Ct.  of  Appeals,  1864,  McKown  v.  Hunter,  30  N.  F.,  625. 

28.  What  questions  may  be  put  to  an  expert,  relative  to  indications  observed 
in  the  handwriting  of  a  promissory  note  and  signature,  bearing  upon  the 
question  of  the  genuineness  of  the  note.    Dubois  v.  Baker,  30  N.  Y.,  354 ; 
affirming  S.  C ,  40  Barb.,  556. 

5.  Parol  Evidence  to  Vary  a  Writing. 

29.  The  rule  that  parol  evidence  is  not  admissible  to  vary  a  written  agree- 
ment applied  in  a  peculiar  case.    Halliday  v.  Hart,  30  N.  Y.,  474. 

30.  An  order  for  the  payment  of  money,  in  the  hands  of  the  payee,  or  his 
assignee,  is  evidence  in  writing  of  his  title  to  the  payment,  which  cannot 
be  varied  or  contradicted  by  parol  evidence.   Ct.  of  Appeals,  1 865,  Parker 
v.  The  City  of  Syracuse,  31  N.  Y.,  376. 


NEW  YORK:   1866.  493 


31.  But  it  is  competent  for  parties,  after  such  order  has  been  delivered  or 
assigned,  to  waive  rights  that  have  been  acquired  thereby,  or  to  modify 
them :   which  waiver  or  modification  may  be  proved  dchors  the  order 
itself.     Ib. 

32.  In  an  action  against  the  sureties  of  a  person  selling  paper  on  commis- 
sion for  the  plaintiff; — Held,  that  evidence  of  a  usage  or  custom  existing 
among  men  engaged  in  that  business,  to  give  notes  to  the  manufacturer, 
before  the  paper  is  sold,  to  enable  him  to  raise  money  thereon  in  anticipa- 
tion of  the  sales,  was  proper:  and  was  not  liable  to  the  objection  that  the 
effect  of  it  was  to  vary  the  terms  of  the  written  contract.     That  it  went  to 
explain  and  ascertain  the  intention  of  the  parties  in  relation  to  a  matter 
upon  which  the  contract  was  silent.    Supreme  Ct.,  1865,  Fox  v.  Parker,  44 
Barb,  541. 

33.  That  an  oral  agreement  connected  with  a  contract  in  writing,  if  subse- 
quent and  independent,  and  founded  on  a  new  consideration,  may  be 
proved  by  parol.     It  is  not  regarded  as  merged  in  the  writing.     Ct.  of 
Appeals,  1865,  Stockwell  v.  Holmes,  33  N.  Y.,  53. 

34.  Parol  evidence  is  admissible  to  show  that  some  of  the  subscriptions 
appearing  upon .  a  subscription-paper  were  made  upon  confidential  con- 
ditions, and  were  therefore    fraudulent   as  against  other  subscriptions. 
Ct.  of  Appeals,  1864,  New  York  Exchange  Company  v.  De  Wolf,  31  N.  Y., 
273. 

35.  Where  one  subscribes  a  sum  towards  raising  a  larger  sum,  as  a  fund  for 
specified  purposes,  his  engagement  does  not  become  operative  until  addi- 
tional sums  are  subscribed.     And  parol  evidence  is  admissible  to  show 
the  purposes  of  the  fund,  and  in  a  general  way,  the  amount  needed,  and 
the  parties  expected  to  contribute.     Ct.  of  Appeals,  1864,  Dodge  v.  Gar- 
diner, si  N.  Y.,  239. 

36.  Parol  declarations  by  a  testator  at  the  time  of  making  a  will,  are  not 
competent  evidence  that  he  intended  by  the  will  to  execute  a  power  of 
appointment  vest»d  in  him.    A  will  must  be  wholly  in  writing,  and  can- 
not be  added  to  or  explained  by  any  parol  communications.     Ct.  of 
Appeals,  1865,  White  v.  Hicks,  33  N.  Y.,  383  ;  affirming  S.  C.,43  Barb.,  64. 

37.  But  the  court  may  compare  the  dispositions  made  by  the  will  with  the 
property  owned  by  the  testator  at  the  time,  and  may   deduce  from  the 
facts  an  intention  to  dispose  of  the  subject  of  the  power.     And  this  may 
be  done  notwithstanding  the  property  in  question  is  personal.     Ib. 

38.  The  English  decisions  holding  that  the  amount  of  the  testator's  property 
at  the  time  of  making  the  will  cannot  be  inquired  into  for  the  purpose  of 
deducing  the  intention  to  execute  a  power  [2  Br.  Ch.,  297;  2  Ves.,  589;  3 
Id.,  299;  7  Id.,  391 ;  2  Mer.,  533 ;  1  Swans.,  65  ;  1  Jac.  &  W.,  352  ;  3  Sim., 
275  ;  5  Id.,  508;  1  Keen,  753;  7  Mylne  &  K,,  666;  3  De  Gex  &  S.,  347; 
13  Gur.,  384;  1  Atk.,558;  Id.,  559;  and  see  1  Hare,  377;  8  Eng.  L.  &  Eq., 
157], — are  not  to  be  followed  in  this  State ;  more  especially  as  the  rule 
has  been  abrogated  by  act  of  Parliament.     [7  Will.  IV.,  and  1  Vic.,  126, 

27.]     Ib. 


494  ABBOTTS'  PEACTICE  DIGEST. 


EVIDENCE. 


6.  Hearsay  :  Res  Gesta. 

39.  After  a  witness  has  stated  what  he  has  seen  and  heard,  which  tended  to 
establish  the  existence  of  a  copartnership,  relied  on  as  rendering  one  of 
the  defendants  liable,  it  is  competent  to  prove  by  him,  negatively,  that  he 
had  no  knowledge  or  information  to  the  contrary.     The  object  of  the  tes- 
timony being  to  prove  that  the  plaintiffs  relied  upon  what  they  had  heard 
as  to  the  acts  of  the  defendants,  it  materially  strengthens  that  evidence  by 
showing  that  nothing  different  had  come  to  their  knowledge.  Supreme  Ct. 
1864,  Conklin  v.  Barton,  43  Barb.,  435. 

40.  Conversations  held  admissible,  under  peculiar  circumstances,  as  part  of 
the  res  gestce.    Fox  v.  Parker,  44  Barb.,  541. 

7.  Admissions  and  Declarations. 

41.  Application  of  the  rule  that  the  admissions  of  a  former  holde'r  of  a  chose 
in  action  are  inadmissible  against  his  assignee ;  euch  admission  being 
deemed  hearsay  evidence.    Ely  v.  McNight,  30  How.  Pr.,  97. 

42.  In  the  absence  of  proof  of  the  effect  of  the  admission  on  the  party  setting 
up  an  estoppel,  it  is  for  the  jury  to  say  whether,  on  the  facts,  the  several 
essential  parts  of  the  estoppel  are  proved.     Ct.  of  Appeals,  1864,  Brown  v. 
Bowen,  30  IV.  Y.,  519. 

43.  The  answer  of  an  executrix,  admitting  receipt  of  money,  and  its  distri- 
bution among  the  next  of  kin  and  legatees ; — Held,  admissible,  and  bind- 

•  ing  upon  defendants  who  were  made  parties  after  her  death  by  bill  of 
revivor  and  supplement.  Ct.  of  Appeals,  1865,  Green  v.  Givan,  33 
N.  Y.,  343. 

44.  The  plaintiff  having  made  a  proposition  to  the  defendant  to  do  certain 
work  and  labor  upon  a  building  which  the  latter  was  erecting,  the  defend- 
ant told  him  to  go  and  see  B.,  the  contractor,  about  it.    He  did  so,  and  B. 
employed  him  to  do  the  work.    There  being  some  evidence  to  show  B.7s 
agency  for  the  defendant; — Held,  that  proof  of  declarations  made  by  B. 
in  making  the  contract  with  the  plaintiff  was  admissible  evidence  against 
the  defendant,  the  declarations  being  those  of  an  agent  relating  to  the 
subject-matter  of  his  agency.     Supreme  Ct.,  1865,  Fleming  v.  Smith,  44 
Barb.,  554. 

8.  Documentary  Evidence. 

45.  The  entry  of  the  plaintiff's  attorney,  in  his  register,  of  the  issuing  of 
execution,  is  competent  evidence,  where  the  attorney  is  dead,  that  it  was 
issued.    In  general,  all  entries  or  memoranda  made  in  the  course  of  busi- 
ness or  duty,  by  any  one  who  would  at  the  time  have  been  a  competent 
witness  of  the  fact  which  he  registers,  are  competent  evidence  after  his 
decease.    Entries  of  an  attorney  in  his  register  are  within  the  rule,  and 
the  court  will  presume  that  the  execution  was  in  the  form  and  contained 
the  directions  which  the  law  at  the  time  required.    Ct.  of  Appeals,  1865, 
Leland  v.  Cameron,  31  N.  Y.,  115. 

46.  The  minutes  of  testimony  taken  by  a  justice  on  the  trial  before  him,  may 
be  read  in  evidence  to  determine  whether  the  scope  of  the  issue  being 


NEW  YORK  :  1866.  495 


tried  before  him  was  changed  by  the  evidence,  for  the  purpose  of  deter- 
mining the  subject-matter  of  litigation.  Ct.  of  Appeals,  1865,  Thurst  v. 
West,  31  N.  Y.,  210. 

47.  A  recognizance  filed  in  the  proper  clerk's  office  becomes  a  record   [5 
Barb.,  360 ;  4  Den.,  530 ;  4  Park.  Cr.,  45],  the  statements  of  which  cannot 
be  contradicted  by  parties  thereto.      [16  Johns.,  55.]     Supreme  Ct.,  1865, 
The  People  v.  Ilurlbult,  44  Barb.,  126. 

48.  Where  a  discharge  recites  all  the  required  jurisdictional  facts  and  pro- 
ceedings, the  county  clerk's  certificate  that  certain  papers,  technically  in- 
sufficient to  show  jurisdiction,  are  all  that  have  been  filed  with  him  in  the 
proceeding,  is  not,  of  itself,  sufficient  to  disprove  the  recitals.      N.  Y.  Su- 
perior Ct.,  1863,  Soule  v.  Chase,  Ante,  48. 

49.  Copies  of  the  proceedings  of  the  Metropolitan  Sanitary  Board,  of  its  rules, 
regulations,  by-laws,  and  hooks  and  papers  constituting  part  of  ils  archives, 
when  authenticated  by  its  secretary,  or  secretary  pro  tern.,  shall  be  presump- 
tive evidence,  and  the  authentication  be  taken  as  presumptively  correct,  in 
any  court  of  justice  or  judicial  proceeding,  when  they  may  be  relevant  to  the 
point  or  matter  in  controversy,  of  the  facts,  statements  and  recitals  therein 
contained,  and  the  actions,  proceedings,  authority  and  orders  of  said  board 
shall  at  all  times  be  regarded  as  in  their  nature  judicial,  and  be  treated  as 
primafitcie  just  and  legal.    1  Laws  of  1866,  143,  ch.  72,  §  31. 

50.  That  the  form  of  the  invoice  sent  with  the  goods  forwarded  to  a  person 
carrying  on  a  business  as  a  commission  merchant,  is  not  conclusive  evi- 
dence on  the  question  whether  the  goods  were  sold,  or  were  sent  for  sale 
on  commission.     Ct.  of  Appeals,  1865,  Beebe  v.  Mead,  33  N.  Y.,  587. 

51.  After  a  defendant  has  availed  himself  of  the  plaintiff's  books  of  account, 
to  establish  certain  credits  in  his  favor,  it  is  competent  for  the  plaintiff  to 
read  from  the  same  books  charges  and  entries  which  show  that  those  cred- 
its have  been  exhausted  by  counter-charges  of  debit,  made  at  about  the 
same  time  and  afterwards.    The  defendant  cannot  use  the  books  to  establish 
credits  in  his  favor,  and  at  the  same  time  deny  to  the  plaintiff  the  full 
benefit  of  the  charges  therein  against  him.      He  must  take  the  whole  or 
none.     Ct.  of  Appeals,  1864,  Dewey  v.  Hotchkiss,  30  N.  Y.,  497. 

52.  The  fact  that  the  entries,  or  some  of  them,  are  in  the  handwriting  of  the 
plaintiffs,  makes  no  difference.     16. 

53.  Depositions  of  third  persons  taken  in  a  previous  action,  to  which  the 
plaintiff  was  not  a  party ; — Held,  inadmissible  to  contradict  the  plaintiff's 
testimony  in  the  present  action.    Ct.  of  Appeals,  1865,  Hubbard  v.  Briggs, 
31  N.  Y.,  518,  536. 

54.  A  contractor  failed  to  complete  his  contract,  and  the  owner  was  com- 
pelled to  complete  the  building.     In  an  action  by  a  sub-contractor  against 
the  owner  for  work  and  materials,  for  which  a  lien  had  been  filed ;—Held, 
that  the  defendant  might  prove  on  the  trial  what  it  had  actually  cost  him 
to  complete  the  building,  for  the  purpose  of  showing  that  nothing  was  due 
to  the  contractor,  and,  consequently,  nothing  due  to  the  plaintiff,  as  sub- 
contractor.    JV.  Y.  Com.  PI.,  1860,  Smith  v.  Ferris,  1  Daly,  19. 

55.  The  record  of  a  dismissal  of  the  complaint  between  the  same  parties  in 
another  court,  for  the  purpose  of  proving  a  former  adjudication,  is  inad- 
missible in  evidence,  unless  it  is  shown  that  such  dismissal  was  a  judicial 


496  ABBOTTS'  PEACTICE   DIGEST. 


EVIDENCE. 


determination  of  the  same  point  in  controversy  here.     [3  East,  346.]     JV. 
Y.  Com,  PL,  1860,  Smith  v.  Ferris,  1  .Daly,  18. 

56.  To  entitle  a  written  contract  between  one  of  the  parties  and  a  third  per- 
son to  be  admitted  in  evidence,  its  pertinency  must  be  first  shown.     N.  Y. 
Com.  PL,  1860,  Smith  v.  Ferris,  1  Daly,  18. 

57.  The  answer  of  a  witness  that  the  consideration  of  a  sale  of  chattels  was 
a  sum  of  money  and  a  lot  of  land,  is  not  open  to  objection  on  the  ground 
that  it  gives  the  contents  of  a  deed  of  land  not  produced  on  the  trial.    N. 
Y.  Com.  PL,  1863,  Reynolds  v.  Kelly,  1  Daly,  283. 

9.  Rules  Relative  to  Particular  Facts  and  Issues. 

58.  In  an  action  upon  a  promissory  note,  held  by  the  plaintiffs  as  collateral 
security,  where  the  defendant  sets  up  in  his  answer  the  defence  of  pay- 
ment, he  may  give  in  evidence  any  facts  which,  in  law,  amount  to  a  satis- 
faction of  the  note,  as  against  such  plaintiffs.     Ct.  of  Appeals,  1865,  Farm- 
ers' and  Citizens'  Bank  v.  Sherman,  33  N.  Y.,  69. 

59.  Where  such  a  note,  held  as  collateral  security  by  the  plaintiffs,  had  been 
paid  to  the  plaintiffs  by  the  payee  thereof,  by  the  delivery  of  lumber  of 
sufficient  value  to  satisfy  the  same,  which  lumber  was  delivered  to,  and 
accepted  by  the  plaintiffs,  in  pursuance  of  an  agreement  that  the  payee 
might  withdraw  any  of  the  collaterals  held  by  the  plaintiffs  to  the  amount 
of  lumber  delivered  to  them,  and  he  designated  such  note  to  be  withdrawn ; 
—Held, 

1.  That  under  the  plea  of  payment,  the  defendant  might  give  evidence 
of  such  agreement,  and  the  transactions  under  it,  and  that,  when  proved, 
the  plea  of  payment  was  sustained. 

*2.  That  the  note  having  been  given  for  the  accommodation  of  the  payee, 
that  such  agreement,  and  the  transactions  under  the  same,  amounted  to  a 
payment  of  the  note  as  between  the  maker  and  the  payee  of  the  same. 
Cl.  of  Appeals,  1865,  Farmers'  and  Citizens'  Bank  v.  Sherman,  33  N 
Y.,  69. 

60.  In  an  action  by  the  receiver  of  a  mutual  insurance  company  upon  a  pre- 
mium note,  it  is  incumbent  upon  the  plaintiff  to  give  some  evidence  of  the 
occurrence  of  losses  which  rendered  the  assessment  proper.      He  is  not 
obliged,  however,  to  prove  the  tires  by  which  the  losses  were  sustained: 
but  in  general,  any  evidence  of  loss  which  would  have  concluded  the  com- 
pany while  it  was  engaged  in  business, — e.  g.,  proof  of  the  settlement  and 
allowance  of  the  loss ;  of  a  judgment  recovered  upon  it,  &c., — will  be  suf- 
ficient.    Ct.  of  Appeals,  1865,  Jackson  v.  Roberts,  31  N.  Y.,  304. 

61.  In  such  an  action,  a  record  of  losses  for  which  the  assessment  was  made, 
showing  the  amount  of  insurance  in  each  instance,  and  the  sum  at  which 
the  loss  was  adjusted,  either  by  the  company  or  the  receiver,  was  produced 
and  proved  by  a  witness  who  was  clerk  of  the  company  during  the  whole 
period  the  defendant's  policy  was  in  force,  and  down  to  the  time  of  the 
company's  dissolution,  and  who  was  afterwards  the  receiver's  clerk.    This 
witness  stated  that  of  his  own  knowledge  the  record  was  made  from  claims 
for  losses  by  fire  and  otherwise,  against  the  company,  some  of  which  claims 
were  allowed  by  the  company,  and  the  others  by  the  receiver;  that  it  con- 


NEW  YOEK  :  1866.  497 


tained  a  list  of  losses  in  the  company,  and  the  date  of  loss,  the  number  of 
policy,  the  names  and  residences  of  the  insured,  the  amount  insured,  and 
amount  paid,  or  adjusted  to  be  paid  thereon,  by  the  company  or  the  re- 
ceiver ;  that  the  assessment  of  the  defendant's  note  was  made  to  pay  the 
losses  which  accrued  -within  that  period ;  that  the  defendant's  policy  was 
in  force  ;  that  he  could  not  specify  the  particular  losses,  but  that  the  same 
appeared  in  the  record  of  losses,  which  he  identified,  and  annexed  to  his 
deposition.  By  reference  to  the  paper,  it  was  seen  that  losses  accrued 
and  were  allowed  for  the  time  the  defendant's  policy  was  in  force,  to  over 
the  sum  of  eight  thousand  dollars; — Held,  that  this  was  ample  proof.  Ct. 
of  Appeals,  1SG5,  Jackson  v.  Koberts,  31  N.  Y.,  304. 

62.  A  depositor; — Held,  not  concluded  by  entries  made  bj  the  bank  in  his 
deposit-book  upon  writing  up  his  account,  where  it  appeared  that  objec- 
tion was  made  within  a  reasonable  afterwards.      N.  Y.  Com.  PL,  1865, 
Schneider  v.  The  Irving  Bank,  1  Daly,  500 ;  S.  C.,  30  How.  Pr.,  190. 

63.  In  an  action  for  breach  of  promise  of  marriage,  evidence  of  the  defend- 
ant's wealth  is  admissible,  as  going  to  show  what  would  have  been  the 
plaintiff's  station  in  society  if  the  promise  had  not  been  broken.    Btit  such 
evidence  should  be  confined  to  the  general  reputation  of  the  defendant  an 
to  property.     Ct.  of  Appeals,  1864,  Kniffen  v.  McConnell,  30  N.  Y.,  285. 

64.  In  an  action  for  breach  of  promise  of  marriage,  where  the  plaintiff  proved ; 
— 1st.  A  promise,  as  admitted  by  the  defendant  in  his  acts  and  conversa- 
tion ;  2d.  The  pregnancy  of  the  plaintiff,  and  subsequent  birth  of  a  child ; 
3d.  An  application  to  the  defendant  to  marry  her,  on  account  of  her  con- 
dition, and  his  refusal ;   4th.  The  appeal  of  the  plaintiff  that  she  did  not 
want  his  money,  but  wanted  his  word  and  honor  that  he  promised  her ; — 
Held,  that  this  evidence  was  amply  sufficient  to  submit  to  the  jury  the 
question  whether  the   defendant  had  seduced  the  plaintiff,  and  if  so, 
whether  he  had  promised  marriage,  to  carry  out  his  intentions,  or  had 
taken  advantage  of  the  confidence  arising  from  that  promise,  to  effect  his 
purpose.     Ct.  of  Appeals,  1864,  Kniffen  v.  McConnell,  30  N.  Y.,  285. 

65.  Where  it  was  proved,  in  an  action  to  recover  damages  for  breach  of 
promise  of  marriage,  that  the  uncle  and  aunt  of  the  plaintiff,  in  her  pres- 
ence, and  without  objection  on  her  part,  asked  the  defendant  to  marry  her, 
which  he  refused,  and  when  the  plaintiff  said  to  the  defendant:  "M.,  I 
don't  want  your  money ;  I  want  your  word  and  honor  that  you  promised 
me,"  he  replied :  "  There  is  no  use  in  talking;  I  can't  marry  you  no\v ;'; — 
Held,  that  there  was  evidence  enough,  on  the  subject  of  a  request,  to  sub- 
mit that  question  to  the  jury.     Ct.  of  Appeals,  1864,  Kniffen  v.  McConnell, 
30  N.  Y.,  285. 

66.  In  an  action  for  breach  of  promise  of  marriage  where  the  answer  con- 
tains only  a  denial  of  the  promke,  evidence  showing  acts  of  improper  and 
lewd  conduct  on  the  part  of  the  plaintiff,  for  the  purpose  of  proving  crim- 
inal intercourse  with  other  men,  after  the  making  of  the  promise,  is  not 
admissible  as  a  bar  to  the  action,  for  the  reason  that  the  defense  is  not  set 
up  in  the  answer.     But  such  evidence  may  be  received  in  mitigation  of 
damages.    Ct.  of  Appeals,  1864,  Kniffen  v.  McConnell,  30  N.  Y.,  285. 

N.  S.— YOL.  I.— 32. 


498  ABBOTTS'  PRACTICE  DIGEST. 


EVIDENCE. 


71.  Where  the  holder  of  a  chattel  mortgage  pledged  it  for  payment  of  a  cer- 
tain sum,  and  subsequently  assigned  it ; — Held,  that  in  the  assignee's  ac- 
tion against  third  persons  for  converting  the  goods  mortgaged,  evidence  of 
such  pledge  was  admissible  as  bearing  on  the  question  of  damages.  JV.  Y. 
Superior  Ct.,  1863,  Haskins  v.  Kelly,  Ante,  63. 

72.  Evidence  of  conversations  between  the  parties  to  a  contract,  prior  to  its 
completion,  however  admissible  to  construe  terms  used  in  it,  is  not  other- 
wise admissible  for  the  purpose  of  determining  the  intention  of  such 
parties.     Ct.  of  Appeals,  1863,  Pollen  v.  Le  Roy,  30  JV.  Y.,  549 •  affirming 
S.  C.,  10  Bosw.,  38. 

73.  Thus  where,  in  an  action  on  a  sale  of  goods  made  through  a  broker,  a 
witness  who  negotiated  the  purchase,  was  asked :  "  What  conversation 
passed  on  the  subject  of  this  sale,  prior  to  the  actual  delivery  to  these 
respective  parties  of  the  sale  note?" — Held,  that  this  was  properly   ex- 
cluded.     The  sale  was  concluded  by  a  bought  and  sold  note  in  writing, 
containing  all  the  elements  of  a  contract :  the  names  of  parties,  price,  de- 
scription of  the  article,  time  of  delivery,  and  time  of  payment.      It  was 
not  competent  to  vary  this  by  evidence  of  what  passed  in  the  previous  ne- 
gotiations, the  only  issue  being  the  contract  and  its  performance,  as  to  the 
specific  article  sold  and  tendered.     Ib. 

74.  In  an  action  by  the  receiver  of  an  insolvent  bank  to  recover  the  amount 
of  defendant's  subscription  to  the  capital  stock  of  the  bank,  evidence  thai 
the  defendant  united  with  other  persons  in  signing  and  acknowledging  a 
certificate  of  incorporation,  in  which,  among  other  things,  is  stated  the 
par  value  of  the  proposed  shares,  and  the  number  of  shares  taken  by  de- 
fendant, is  sufficient  to  charge  the  defendant  as  a  subscriber.    It  is  not 
necessary  that  the  subscription-paper  should  contain  an  express  promise 
to  take  or  pay  for  the  shares.     [2  N.  Y.  (2  Uomst.),  330  ;  16  N.  Y.,  451 ; 
Id.,  457  ;  12  Cow.,  500  ;  10  Barb.,  260.]     Ct.  of  'Appeals,  1865,  Dayton  v. 
Borst,  31  N.  Y.,  435. 

75.  In  an  action  upon  a  warranty  of  a  horse,  given  by  the  defendant  on 
selling  the  horse,  after  the  warranty  has  been  proved,  evidence  of  any 
statements  previously  made  by  a  former  owner  of  the  horse  to  the  defen- 
dant, leading  him  to  suppose  his  warranty  true,  is  immaterial.    It  is  no 
answer  to  a  claim  upon  a  warranty,  that  the  defendants  made  it  under 
misinformation  or  in  good  faith.  Ct.  of  Appeals,  1865,  Brisbane  v.  Parsons, 
33  N.  Y.,  332. 

76.  Letters  by  a  creditor  to  his  debtor  in  a  peculiar  case ; — Held,  not  suffi- 
cient evidence  to  establish  that  land  sold  under  the  judgment,  and  bid  in 
by  the  creditor,  was  taken  as  security  only.  Leland  v.  Cameron,  31  N.  Y.t 
115. 

77.  Where  the  master  of  a  vessel  conveying  a  cargo  of  hides,  found  the 
cargo,  at  an  intermediate  port,  to  be  in  a  bad  and  perishing  condition, 
summoned  three  respectable  men,  dealers  in,  and  shippers  of  hides,  to 
examine  the  cargo,  and  declare  what  it  was  proper  for  him  to  do,  tinder 
the  circumstances,  and  they  advised  a  sale,  and  the  hides  were  sold  accord- 
ingly ; — Held,  that  although  this  advice  was  not  conclusive,  yet  that  it 


NEW  YORK:   1866.  499 


EVIDENCE. 


should  be  taken  into  consideration  by  the  jury  in  determining  the  question 
as  to  the  necessity  of  a  sale,  and  was  entitled  to  very  considerable  weight. 
Ct.  of  Appeals,  1864,  Butler  v.  Murray,  30  N.  Y.,  88. 

78.  What  is  sufficient  evidence  of  the  quality  of  goods  sold, — e.  g.,  butter, — 
in  an  action  for  the  price,  defended  on  the  ground  of  defective  quality. 
Travis  v.  Jenkins,  30  How.  Pr.,  152. 

79.  To  entitle  persons  who  have  received  goods  as  factors,  for  sale  upon 
commission,  to  hold  the  property  as  against  the  consignor,  it  is  essential  to 
establish  one  of  two  propositions ;    first,  that  they  had  made  advances 
specially  upon  the  credit  of  this  shipment ;  or,  second,  that  they  were  en- 
titled, by  their  arrangement  with  the  consignor,  to  a  lien  for  any  balance 
of  advances,  personally.    Ct.  of  Appeals,  1805,  Beebee  v.  Mead,  33  N.  Y., 
587. 

80.  To  entitle  a  party  to  a  decree  of  a  court  of  equity,  reforming  a  written 
instrument,  he  must  show  a  plain  mistake ;  and  this  must  be  clearly  made 
out  by  satisfactory  proofs.    He  must  also  show  that  the  part  omitted  or 
inserted  in  the  instrument,  was  omitted  or  inserted  contrary  to  the  intent 
of  both  parties,  and  under  a  mutual  mistake.    Ct.  of  Appeals,  18G5,  Nevius 
v.  Dunlap,  33  N.  Y.,  676. 

81.  To  rescind  a  sale  of  bank  stock,  and  recover  back  the  price,  on  the  ground 
of  false  representations  made  by  the  seller,  to  induce  the  buyer  to  purchase, 
a  petition  by  stockholders  of  the  bank,  praying  for  a  re-establishment  after 
a  receiver  had  been  ordered,  and  stating  its  financial  condition,  to  which 
petition  the  defendant  was  not  a  party,  is  not  competent  against  the  defen- 
dant to  show  the  falsity  of  his  representations.     Ct.  of  Appeals,   1864,- 
Leferer  v.  Lefever,  30  N.  Y.,  27. 

82.  To  constitute  a  surrender  of  the  lease,  it  is  necessary  that  the  mutual 
agreement  between  lessor  and  lessee  that  the  lease  shall  terminate,  should 
be  shown.     But  this  agreement  may  bo  implied  from  circumstances.      Ct. 
of  Appeals,  1864,  Bedford  v.  Terhune,  30  N.  Y.,  453. 

83.  What  evidence  is  sufficient  to  show  a  surrender, — considered.     Ib. 

84.  Evidence  that  plaintiff  was  a  passenger  on  defendants'  vessel  in  a  pecu- 
liar case, — Held,  sufficient.    Merrill  v.  Grinnell,  30  N.  Y.,  594. 

85.  In  an  action  for  services  of  an  architect  in  drawing  up  building  plans 
for  a  corporation,  if  it  appears  that  the  plans  were  delivered  to  the  cor- 
poration, the  bringing  of  the  suit  is  sufficient  notice  to  produce  them.     Ct. 
of  Appeals,  1864,  Hooker  v.  Eagle  Bank  of  Rochester,  30  N.  Y.,  83. 

86.  A  married  woman  conveyed  real  property  owned  by  her  in  her  own 
right,  receiving  bonds  and  mortgages  in  part  payment  for  the  considera. 
tion,  and  afterwards  assigned  the  bonds  and  mortgages  by  an  instrument 
containing  a  covenant  of  guaranty  by  herself  and  her  husband,  that  the 
money  secured  by  them  was  collectible.     In  an  action  upon  the  covenant 
against  husband  and  wife ; — Held,  that  to  enable  the  plaintiffs  to  charge 
the  separate  estate  of  the  wife  with  the  balance  unpaid,  he  was  bound  to 
show  either  that  an  intention  to  charge  the  estate  was  expressed  in  the 
contract  of  sale  and  guaranty  [22  N.  Y.,  450],  or  that  the  consideration 
obtained  upon  the  sale  was  applied  for  the  benefit  of  her  separate  estate. 
Ct.  of  Appeals,  1865,  White  v  McNett,  33  N.  Y.,  371. 


500  ABBOTTS'  PRACTICE  DIGEST. 


87.  That  a  custom  -which  is  inconsistent  with  the  express  terms  of  a  contract 
cannot  be  proved  to  affect  the  rights  of  parties  under  it.     Supreme  Ct., 
Sp.  T.,  1864,  Lombardo  v.  Case,  45  Barb.,  95  ;  S.  C.,  30  How.  Pr.,  117. 

88.  It  is  sometimes  proper  to  prove  usage,  to  interpret  the  otherwise  inde- 
terminate intentions  of  parties,  and  to  ascertain  the  nature  and  extent  of  the 
contracts  not  arising,  from  express  stipulation,  but  from  mere  implications 
and  presumptions,  and  acts  of  a  doubtful  character.     It  is  not  necessary 
that  it  should  have  existed  immemorially,  and  it  is  sufficient  if  it  be  estab- 
lished, known,  certain,  uniform,  reasonable,  and  not  contrary  to  law.     [2 
Greenl.  Ev.,  $  251 ;  4  Hill,  107 ;  Cowen  and  Hill's  Notes  to  Phil.  Ev., 
1408-1420.]     Supreme  Ct.,  1865,  Fox  v.  Parker,  44  Barb.,  541. 

89.  In  an  action  by  a  bank,  as  indorser  of  a  note  given  to  an  insurance  com- 
pany, the  bank,  to  show  its  title  to  the  note,  may  give  evidence  of  a  uniform 
practice  by  the  insurance  company,  for  a  period  of  several  months  prior 
to  the  transfer  of  the  note  in  suit,  of  raising  money  upon  its  notes,  upon 
the  indorsement  of  its  president  for  the  purpose  of  passing  title,  and  such 
evidence  will  warrant  the  jury  in  finding  that  the  indorsement  of  the  note 
in  suit  was  upon  sufficient  authority  to  make  it  binding  in  favor  of  plain- 
tiffs.    [14  N.  Y.,  634;  16  N.  Y.,  125  ;  23  How.  U.  S.,  345;  34  Eng.  L.  & 
Eq.,  131 ;  13  N.  Y.,  318 ;  30  N.  Y.,  218.]     Ct.  of  Appeals,  1865,  Marine 
Bank  v.  Clements,  31  N.  Y.,  33. 

90.  To  establish  an  estoppel  in  pais,  it  must  be  shown  :  1st,  That  the  person 
sought  to  be  estopped,  has  made  an  admission  or  done  an  act,  with  the 
intention  of  influencing  the  conduct  of  another,  or  that  he  had  reason  to 
believe  would  influence  his  conduct,  inconsistent  with  the  evidence  he 
proposed  to  give,  or  the  title  he  proposed  to  set  up.    2nd.  That  the  other 
party  has  acted  upon,  or  been  influenced,  by  such  act  or  declaration. 
3d.  That  the  party  will  be  prejudiced  by  allowing  the  truth  of  the  admis- 
sion to  be  disproved.     [18  N.  Y.,  392.]     Ct.  of  Appeals,  1864,  Brown  v. 
Bowen,  30  N.  Y.,  519. 

91.  Whether  the  debtor  has  more  or  less  property,  beyond  the  amount  lim- 
ited by  the  statute,  is  wholly  immaterial  in  determining  whether  a  team 
is  necessary  to  him.    Hence,  evidence  to  show  that  that  the  party  claim- 
ing his  horse  to  be  exempt,  as  being  his  "  team,"  had,  shortly  before  the 
same  was  levied  on,  owned  two  other  horses  worth  two  hundred  dollars, 
and  had  other  property  which  he  had  disposed  of,  and  transferred  the 
avails  to  his  wife,  which  she  held  at  the  time  of  the  levy,  is  improper,  and 
should  be  excluded.    Ct.  of  Appeals,  1864,  Wilcox  v.  Hawley,  31  N.   Y., 
648. 

92.  That  representations  made  in  the  presence  and  hearing  of  a  party  sued 
for  deceit,  and  without  objection  from  him,  may  be  proved  in  connection 
with  evidence  of  false  representations  previously  made  by  him,  as  tend- 
ing to  show  fraudulent  intent.    Ct.  of  Appeals,  1865,  Hubbard  v.  Briggs, 
31  N.  Y.,  518,  537. 

93.  Fraud  is  not  ordinarily  capable  of  being  established  by  direct  affirma- 
tive proof.    Any  evidence  having  a  tendency,  though  it  may  be  slight,  to 
establish  fraud,  is  not  incompetent.     Necessarily,  considerable  latitude  is 
to  be  allowed  in  giving  evidence  of  circumstances  tending  to  prove  the 


YORK:  1866.  501 


fraudulent  intent.  Thus,  in  an  action  for  false  representations  as  to  the 
value  of  bank  stock,  evidence  bearing  upon  the  questions  of  the  actual  con- 
dition of  the  bank  when  the  alleged  representations  were  made,  the  defen- 
dant's knowledge  of  its  condition,  and  whether  such  representations  were 
made  with  the  design  to  deceive  or  mislead,  is  legitimate  and  proper. 
Ct.  of  A,  peals,  1865,  Ilubbard  v.  Briggs,  31  N.  Y.,  518. 

90.  While  fraud  is  to  be  proved,  and  not  inferred,  it  may  be  proved  by  cir- 
cumstances, and  by  a  train  of  connected  circumstances  leading  to  the  main 
result.     Ct.  of  Appeals,  1865,  Booth  v.  Bunco,  33  N.  Y.,  139. 

91.  In  an  action  against  the  sheriff  for  a  false  return  of  nulla  bona.  after  the 
plaintiff  has  introduced  evidence  sufficient,  prima  facie,  to  establish  prop- 
erty in  the  judgment  debtor,  and  a  levy  thereon,  the  sheriff  has  a  right  to 
controvert  such  evidence,  and  to  prove  that  such  property  did  not  belong 
to  the  judgment  debtor,  but  to  another  person.     Supreme  Ct.,  1864,  Lum- 
mis  v.  Kasson,  43  Barb.,  373. 

92.  No  different  proof  is  required  to  establish  a  gift  causa  mortis  than  one 
inter  vivos.    It  is  essential  to  both  that  there  should  be  an  expression  of 
purpose  to  make  the  gift,  and  an  actual  delivery  of  the  subject  thereof 
to  the  donee.     In  the  one  case,  the  gift  becomes  complete  by  delivery,  in 
the  other,  by  the  death  of  the  donor.     In  either,  there  is  no  gift  without 
delivery.     Gifts  made  in  prospect  of  death  are  not  favored  by  the  courts ; 
but  when  the  proof  establishes  a  valid  gift  cf  that  nature,  it  is  to  be  up- 
held.      Nor  where  a  jarty  claims  title  to  property  by  such  a.  disposition, 
is  he  called  upon,  hi  order  to  sustain  the  claim,  to  show  affirmatively, 
and  with  minuteness,   the    circumstances    under  which  the  alleged  gift 
was  made.     He  establishes  a  prima  facie  case  when  he  shows  that  the 
disposition  has  been  attended  with  all  the  requisites  which  the  common 
law  prescribes,  to  give  it  validity.      He  is  not  required  to  prove  affir- 
matively that  the  donor  was    of  sound    disposing    mind    and    memory, 
when  he  made  the  gift,  and  that   the    delivery  of  the  subject  was  his 
free  and  voluntary  act.     These  are  matters  of  defence    equally  applic- 
able to  gifts  inter  vivos  and  causa  mortis.     Ct.  of  Appeals,  1865,  Bedell  v. 
Carll,  33  N.  Y.,  581. 

93.  E.  died  intestate,  leaving  a  widow,  the  plaintiff,  and  certain  minor  child- 
ren, who  were  supported  by  their  mother  fur  the  period  of  two  years  and 
upwards      G.  was  appointed  general  guardian  of  the  minor  children,  and 
administrator  of  the  estate  of  E.     There  was  a  large  amount  of  property, 
especially  real  estate,  to  be  made  liable  for  the  support  of  the  minor  child- 
ren.     During  the  period  of  two  years,  G.  had  let  the  plaintiff,  the  widow, 
and  mother  of  his  wards,  have  several  sums  of  money,  amounting  to  nearly 
$3,000 .     The  plaintiff  sued  the  defendant  for  money  had  and  received  for 
her  use.      The  defendant  sought  to  set  off  the  money  paid  to  the  plaintiff 
as  above  stated  against  the  claim  established  by  the  plaintiff.     Held,  that 
upon  the  question  whether  the  money  so  paid  by  the  defendant  to  the 
plaintiff,  was  paid  to  her  for  her  use,  or  for  the  maintenance  of  her  minor 
children,  evidence  that  the  guardian  at  the  time  of  making  such  payments 
had  no  funds  in  his  hands  belonging  to  his  wards,  was  too  remote  from 


502  ABBOTTS'  PEACTICE  DIGEST. 


the  issue,  and  too  conjectural,  to  be  admissible.     Ct.  of  Appeals,  1865 
Elliott  v.  Gibbons,  31  N.  Y.,  67. 

94.  In  an  action  to  recover  damages  for  an  injury  to  plaintiff's  limb,  there  is 
no  valid  objaction  to  the  exhibition  of  the  injured  limb,  by  the  plaintiff,  to 
the  surgeon  called  to  describe  the  injury,  before  the  jury.     Ct.  of  Appeals, 
1864,  Mulhado  v.  Brooklyn  City  Railroad  Company,  30  N.  Y.,  370. 

95.  What  is  sufficient  evidence  of  negligence  of  the  defendant,  in  an  action  for 
driving  a  wagon  so  as  to  run  over  the  plaintiff.     Phelps  v.  Wait,  30 
N.  Y.,  78. 

96.  Of  the  materiality  of  evidence  as  to  the  election  of  trustees,  in  an  action 
upon  a  subscription  paper  for  the  erection  of  a  school,  turning  upon  pecu- 
liar facts.     Wayne  and  Ontario  Col.  Inst.  v.  Devinney,  43  Barb.,  220. 

97.  The  acts  of  a  sheriff'  in  the  return  of  a  process,  so  far  as  the  rights  of 
parties  are  concerned,  must  be  taken  as  true  when  they  arise  collaterally, 
and  can  only  be  impeached  by  direct  proceedings,  to  which  the  officer  is  a 
party;  or  rectified  upon  a  summary  application  to  the  court  to  correct  or 
set  aside  the  return.     N.  Y.  Com.  PL,  1860,  Sperling  v.  Levy,  1  Daly,  95. 

98.  In  an  action  for  a  penalty  prescribed  by  a  statute,  the  conditions  upon 
which  the  penalty  attaches  must  be  affirmatively  shown  to  have  existed. 
Ct.  of  Appeals,  1864,  Commissioners  of  Pilots  v.  Yanderbilt,  31  N.  Y.,  265. 

99.  Evidence  of  a  master's  authority  from  the  owners  of  a  vessel  to  bind 
the  owners  in  the  disposal  of  the  cargo  and  purchase  of  a  return  cargo,  in 
a  peculiar  case  ; — Held,  sufficient.     Bidenlac  v.  Smith,  31  N.  Y.,  259. 

100.  In  an  action  of  slander,  in  charging  the  plaintiff  with   perjury,  where 
the  words  alleged  are  not  actionable  in  themselves,  the  plaintiff  must  show 
that  the  testimony  charged  to  have  been  false  was  material  and  pertinent 
to  the  issue ;  and   although  the  materiality  and  pertinency  will  be  pre- 
sumed as  matter  of  law,   yet  the  contrary  may  be  shown  by  defendant. 
N.  Y.  Supreme  Ct.,  Sp.  T.,  lb'66,  Wilbur  v.  Ostrom,  Ante,  275. 

101.  In  an  action  for  slander,  the  plaintiff',  to  show  special  damages,  may  give 
in  evidence  the  contents  of  a  letter  written  by  the  person  to  whom  the 
slander  was  uttered,  to  his  partner  advising  him  to  discharge  the  plaintiff 
from  their  employ,  and  stating  the  substance  of  the  writer's  conversation 
with  the  defendant,  although  the  letter  did  not  cause  the  discharge  of  the 
plaintiff,  but  only  an  examination  of  hia  trunk.      Ct.   of  Appeals,  1864, 
Fowles  v.  Bowen,  30  N.  Y.,  20 . 

102.  In  a  case  of  a  privileged  communication, — e.  g.,  a  statement  to  an  em- 
ployer relative  to  the  honesty  of  his  servant, — slight  evidence  of  malice  is 
sufficient  to  go  to  the  jury.     But  there  must  be  some  evidence  in  order  to 
sustain  the  action,  something  to  indicate  an  intention  to  injure,  more  than 
mere  general  evidence  that  the  words  complained  of  were  not  true.    Ct.  of 
Appeals,  1864,  Fowles  v.  Bowen,  30  N.  Y.,  20. 

103.  Of  the  evidence  that  will  sustain  a  finding  for  the  defendant  in  an  action 
for  trespass,  in  crossing  plaintiffs  premises  after  being  forbidden.    Mar- 
tin v.  Iloughton,  Ante,  339. 

104.  Evidence  that  the  defendants  knew  that  the  sheriff  had  levied  an  execu- 
tion, issued  by  them  against  a  third  person,  upon  property  claimed  by  the 


NEW  YOKK:  1866.  503 


pl.untiff  as  his  assignees;  that  they  and  their  ai,toi.*:ey  withheld  any  spe- 
cific directions,  exempting  the  property  claimed  from  execution  and  sale ; 
that  they  knew  the  property  was  advertised  for  sale,  under  the  execution, 
and  afterwards  received  the  proceeds  of  the  sale  in  payment  of  the  execu- 
tion, is  sufficient  to  go  to  the  jury  upon  the  question  whether  the  defend- 
ants did  not  by  their  acts  ratify  the  taking  and  sale  of  the  goods  by  the 
sheriff,  and  so  render  themselves  liable  for  his  acts.  [11  Barb.,  642;  8  Id., 
357,  distinguishing  6  Mann.  &  G.,  236 ;  13  A.d.  &  E.,  780.]  Ct.  of  Appeals, 
1864,  Brainerd  v.  Dunning,  30  N.  Y.,  211. 

105.  Evidence  of  insane  delusions  affecting  the  mind  of  the  testator,  in  a 
peculiar  case ; — Held,  sufficient  to  avoid  his  will.    American  Seaman's 
Friend  Society  v.  Hopper,  33  N.  Y.,  619. 

106.  Where  the  death  of  witnesses  to  the  execution  of  the  will,  or  their 
entire    forgetfulness    of    the    facts    attending    the    execution,    makes 
it    impossible    to    prove    the     paper    directly,    the    will,     if     cor- 
rect upon  its  face,  may  bo  proved  by  resort  to  evidence  of  the  genuineness 
of  the  signatures,  and  other  corroborating  circumstances.     [2  Bradf.,  228 ; 
4  Wend.,  277;  2  Rev.  Stat.,  58,  ft  13, 16 ;  Laws  of  1837,  ch.  460,  $  20  ; 
Com.  Rep.,  531 ;  4  Cow.,  489;  5  Id.,  221,  224;  4  Eng.  L.  &  Eq.,  596  ;  24 
N.  Y.,  51;  25  Id.,  427;  Str.,  1096;  4  Burr,  22,  414;  3  Barb.  Ch.,  158;  2 
Id.,  40 ;  25  N.  Y.,  422 ;  27  Id.,  10 ;  Jarm.  on  Wills,  226 ;  10  Paige,  85, 90  ; 
18  Barb.,  434,  438.]     Supreme  Ct.,  1866,  Lawrence  v.  Norton,  30  How. 
Pr.,  232. 

107.  What  proof  is  sufficient  in  such  a  case.     16. 

DEPOSITION  :  DISCOVERT  AND  INSPECTION  :  ESTOPPEL  :  JUSTICE'S  COURT,  13 : 
NEW  TRIAL  :  UNDERTAKING  :  WITNESS. 

EXAMINATION    OF  PARTIES. 

WITNESS. 

EXCEPTIONS. 

1.  If  a  party,  on  the  trial,  objects  to  the  admission  of  letters  of  administration 
when  offered  in  evidence,  merely  as  being  incompetent,  he  cannot,  on  ap- 
peal, insist  that  they  are  void  for  want  of  jurisdiction  in  the  surrogate. 
[7  N.  Y.,  345  ;  20  Barb.,  409 ;  42  Id.,  36.]     Supreme  Ct.,  1865,  Etheridge 
v.  Ladd,  44  Barb,,  69. 

2.  Exceptions  to  the  report  of  the  referee,  filed  after  the  report,  stating  in 
general  terms  that  "  the  plaintiff  excepts  to  each  and  every  one  of  the  de- 
cisions and  rulings  of  the  referee,  against  the  plaintiff,  on  the  trial  of  this 
action,  severally,  separately  and  distinctively,"  amounts  to  nothing,  and 
cannot  be  reviewed  on  appeal.     Ct.  of  Appeals,  1865,  Newell  v.  Doty,  33 
N.  Y.,  83. 

3.  So  also  an  exception  that  "  the  plaintiff  excepts  to  each  and  every  one  of 
the  referee's  findings  of  fact,  severally,  separately  and  distinctively,  found 
and  stated  in  his  report,  and  alleges  that  his  findings  on  each  and  every 
one  of  the  questions  of  fact  submitted  by  him  is  unsupported  by  and  con- 
trary to  the  evidence,"  points  to  no  specific  error,  and  is  entirely  useless 
verbiage,  if  inserted  in  a  case.    Ib. 


504:  ABBOTTS'  PRACTICE  DIGEST. 


EXCEPTIONS. 


4.  The  case  on  appeal  showed  that  the  counsel  for  the  defendant  presented 
to  the  judge  six  propositions  in  writing,  and  requested  him  to  charge  in 
accordance  therewith :  •'  Whereupon,"  the  case  states,  "  the  justice,  among 
other  things,  charged  the  jury" — setting  forth  the  charge  as  given  on  sev- 
eral questions  in  the  case.    "  At  the  close  of  the  charge,  the  counsel  for 
the  defendant  excepted  thereto,  so  far  as  the  same  differed  from  the  above 
requests.'' — Held,  that  this  exception  was  not  sufficient  to  raise  any  ques- 
tion   for    consideration.      It  is  not    an    exception  to  any  point  of  the 
charge  as  given;  nor  to  any  refusal  of  the  judge  to  charge  as  requested; 
but  to  the  whole  charge,  so  far  as  it  differed  from  the  six  propositions 
presented.    But  as  the  whole  charge  was  not  given,  it  was  impossible  to 
see  wherein  it  did  differ  from  such  propositions.     The  charge   was  given 
professedly  only  in  part,  while  the  exception  was  to  the  whole,  in  so  far 
as  the  whole,  and  not  the  part  set  forth,  differed  from  the  requests.     This 
was  altogether  too  loose  and  general.    The  counsel  should  have  specific- 
ally pointed  out  the  difference  of  which  he  complained,  so  that  the  mind 
of  the  judge  might  have  been  brought  to  the  exact  proposition,  and  he 
have  had  the  opportunity  to  make   any   correction  or   explanation  he 
thought  advisable ;  or  his   refusal  to  charge  each  of  the  propositions 
should  have  been  obtained,  and  an  exception  taken  thereto.     [2  Sold., 
233;  lid.,  422;  2  Kern.,  319 ;  5  Seld.,  170;  1  Kern.,  416;  Id.,  420;  3 
Seld.,  266 ;  4  Id.,  37;  1  Kern.,  61.]     Ct.  of  Appeals,  1864,  Chamberlain  v. 
Pratt,  33  N.  Y.,  47. 

5.  A  general  exception  to  the  finding  of  a  referee  allowing  interest  is  not 
specific  enough :  if  the  error  is  in  allowing  interest  for  too  long  a  time, 
the  exception  should  state  from  what  period  it  should  be   computed. 
Supreme  Ct.,  1865,  Graham  v.  Chrystal,  Ante,  121. 

6.  If  the  judge  excludes  the  whole  defence  on  the  opening  of  the  counsel,  on 
the  ground  that  the  matters  proposed  to  be  proved  do  not  constitute  any 
defence  one  exception  to  the  decision  is  good.    It  is  not  necessary  for  the 
defendant's  counsel  to  repeat  the  statements  again,  and  to  take  a  separate 
ruling  on  each.     Supreme  Ct,,  1865,  Sawyer  v.  Chambers,  44  Barb.,  42. 

7.  Where  counsel  do  not  ask  to  have  a  question  of  fact  submitted  to  the 
jury,  but  assent  to  its  being  determined  by  the  presiding  judge,  the  party 
is  concluded  by  the  finding  of  the  judge.    The  judge  having  been  substi- 
tuted in  the  place  of  the  jury  on  that  question,  and  there  being  evidence 
to  sustain  the  conclusion  at  which  the  court  arrived,  the  matter  of  fact 
involved  therein  is  not  the  subject  of  exception,  nor  reviewable  in  a  court 
which  passes  only  on  questions  of  law.     [28  Barb.,  180 ;   6  Wend.,  415 ;  2 
Kern.,  22,  23 ;  4  Seld.,  78  ;  19  Wend.,  444  ;  6  Hilt.,  410.J  Ct.  of  Appeals, 
1865,  Marine  Bank  v.  Clements,  31  N.  Y.,  33. 

8.  Where  a  cause  has  been  tried  on  the  assumption  of  a  fact,  the  absence  of 
proof  of  that  fact  cannot  be  relied  upon  in  determining  exceptions  at  the 
general  term.   Supreme  Ct.,  1865,  The  People  v.  Hurlbult,  44  Barb.,  126. 

APPEAL,  18-39. 


NEW  YORK:   1866.  505 


EXECUTION. 


EXECUTION. 

1.  Section  283  of  the  Code  of  Procedure, — authorizing  the  successful  party  to 
enforce  his  judgment  by  execution  within  five  years,— amended  by  inserting 
a  provision  that  in  case  of  his  death,  his  personal  representative  duly  ap- 
pointed may  do  the  same,    2  Laws  of  18G6,  1839,  ch.  824,  §  10. 

2.  Where  execution  issues  against  several  defendants,  the   party  in  whose 
favor  it  issues  may  direct  the  levy  to  be  made  upon  the  property  of  one  or 
the  other ;  and  the  plaintiff  must  conform  his  acts  to  such  directions.  The 
party  in  whose  favor  process  issues,   may   give  such   instructions  to  the 
sheriff  as  will  not  only  excuse  him  from  his  genoral  duty,   but  bind  him. 
Both  the  process  and  the  law  which  conveys  authority  under  it,  are  for 
the  benefit  of  Ihe  party  in  whose  behalf  it  is  issued,  and  it  is  a  general 
rule  that  a  man  may  dispense  with  an  entire  law  which  is  intended  for  his 
aid  or  protection.     It  follows  that  he  may  qualify  it,   to  a  greater  or  less 
extent,  according  to  his  discretion.     [22  Wend.,  566;  Id.,  569.J     Ct.   of 
Appeals,  1865,  Root  v.Wagnek-,  30  N.  Y.,  9. 

3.  Where  the  acting  members  of  a  corporation  have  formed  a  second  corpor- 
ation, and  have  transferred  the  assets  of  the   former  corporation  to   the 
latter,  with  intent  to  hinder,  delay,  and  dt fraud  the  creditors  of  the  for- 
mer, the  property  thus  fraudulently  transfeired  is  still  liable  to  be  taken 
on  execution  as  the  property  of  the  former  corporation.      Ct.  of  Appeals, 
1865.  Booth  v.  Buuce,  33  N.  T.,  139. 

4.  "  The  team"  which  the  exemption  law  (Laws  of  1842,  ch.  157)  exempts 
from  execution,  may  be  either  one,  or  any  number   of  animals,  which  a 
householder  or  head  of  a  family  uses  in  the  business   of  providing   for  a 
family,  not  exceeding  in  value  the  limits  fixed  by  the  statute.     (La\vs   of 
1859,  343,  ch.  134.)  Ct.  of  Appeals,  1864,  Wilcox  v.  Hawley,  31  N.  Y.,  648. 

4.  In  addition  to  the  articles  now  exempted  by  law  from  levy  and  sale  under 
execution,  there  shall  be  exempted  from  such  snle,  necessary  household  fur- 
niture, and  working  tools  and  team,  professional  instruments,  furniture,  and 
library  owned  by  any  person  being  a  householder,  or  having  a  family  for 
which  he  provides,  to  the  value  of  not  exceeding  TWO  hundred  and  fifty- 
dollars,  and  in  addition  thereto  there  shatt  be  exempted, from  such  levy  and  sale 
the  necessary  food  for  said  team  for  a  period  not  exceeding  ninety  days,  and  a 
sewing  machine  ;  provided  that  such  exemption  shall  not  extend  to  any  exe- 
cution issued  on  a  demand  for  the  purchase  money  of  such  furniture,  tools, 
or  team,  or  the  food  for  said  team,  or  professional  instruments,  furniture,  or 
library,  sewing  machine,  or  the  articles  now  enumerated  by  law.  Laws  of 
1842,  ch.  157,  as  amended  by  2  Laws  of  1866,  1686,  ch.  782.* 

6.  Where  a  deputy  sheriff  posted  a  notice  of  sale  on  execution  in  a  grocery, 
and  the  wind  having  blown  it  down,  it  was  picked  up  and  laid  upon  the 
counter,  and  the  defendant,  after  inquiring  if  the  deputy  had  left  any  no- 
•  tice  there,  took  up  the  notice  and  carried  it  away,  saying  "  he  did  not 
want  any  such  thing  up  with  his  name  on  it,"  and  that  "  it  was  his  busi- 
ness to  take  them  down,"  and  he  would  take  them  all  down  -,  —  Held.  that 
these  facts  brought  the  case  within  the  statute  which  makes  any  person 

*  The  amendment  consists  in  the  insertion  of  the  words  italicised  above, 
and  in  making  the  limit  of  the  value  two  hundred  and  fifty  instead  of  one 
hundred  and  fifty  dollars. 


506  ABBOTTS'  PKACTICE  DIGEST. 


EXTRADITION. 


who  shall  "  take  down  or  deface"  a  notice  of  that  description  liable  to   a 
penalty  of  $50.     Supreme  Ct.,  1865,  Murphy  v.  Tripp,  44  Barb.,  189. 

7.  Where  the  execution  is  for  more  than  §500,  a  defendant  applying  for  a 
discharge  under  the  statute,  must  have  been  three  months  charged  in  ex- 
ecution.   It  is  not  enough  that  his  imprisonment  under  the  execution  and 
the  order  of  arrest  has  continued  for  three  mouths.     Supreme  Ct.,  Sp,  T.} 
1864,  Dusar  v.  Delacroix,  Ante,  409,  note. 

8.  Under  the  provision  of  2  Rev.  Stat.,  556, — where  a  defendant  has  been  ar- 
rested in  the  action,  the  three  months  within  which   the  plaintiff  must 
charge  him  in  execution  is  from  the  last  day  of  the  special  term  for  non- 
enumerated  motions,  following  that  at   which  judgment  was   obtained. 
Supreme  Ct.,  Sp.  T.,  1865,  Haviland  v.  Kane,  Ante,  409. 

9.  Attachment  may  issue  against  the  guardian  of  an  infant,  for  costs.    Grant- 
man  v.  Thrall,  31  How.  Pr.,  464. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  Under  the  provision  of  2  Rev.  Stat.,  271  (Edm.  ed.) — regulating  the  prior- 
ity of  right  to  letters  of  administration, — the  guardian  of  an  infant  who 
is  not  a  residuary  or  specific  legatee  is  not  entitled  to  letters  of  adminis- 
tration in  preference  to  the  widow.    The  adult  is  entitled  to  preference 
over  an  infant,  who  but  for  such  infancy  would  have  been  preferred.     [15 
Barb.,  304.  |    Supreme  Ct,,  1864,  Cluett  v.  Matticc,  43  Barb.,  417. 

2.  "Where  a  will  directs  an  executor  to  invest  a  fund,   and  accumulate   the 
proceeds  for  the  benefit  of  a   minor,  without  anything  indicating  the  in- 
tention to  create  a  separate  and  distinct  trust,  the  executor  will  hold  as 
executor,  rather  than  as  a  trustee  ;  and  his  commissions  are  to  be  comput- 
ed accordingly.    N.  Y.  Supreme  Ct.,  1865,  Lansing  v.  Lansing,  Ante,  280. 

3.  Where  a  fund  is  set  apart,  and  the  income  given  for  the  benefit  of  the 
legatee,  without  specifying  a  certain  amount  of  income,  the  commissions 
and  taxes  are  chargeable  upon  it,  and  not  on  the  general  estate.     16. 

4.  An  executor  is  not  charged  compound  interest,  except  in  clear  cases.    Ib. 

5.  If  the  will  directs  an  investment  to  be  made  upon  a  specified  sort  of  secu- 
rity, and  the  executor  finds  none  of  the  kind  offering,  he  is  not  bound  to 
geek  the  instructions  of  the  court,  but  will  be  held  to  have  performed  his 
dutv  if  in  good  faith  and  a  sound  discretion  he  adopts  such  investment  as 
a  prudent  and  intelligent  man  would  do,  managing  his  own  affairs,  not  in 
reference  to  large  gains,  but  the  safety  of  the  principal  and  the  probable 
income .     Ib. 

6-  An  executor  or  other  trustee  of  a  fund  invested  in  land,  who  pays  the 
highway  taxes  thereof,  by  his  personal  labor,  is  entitled  to  be  allowed 
the  amount  thereof  in  his  account,  as  if  it  had  been  paid  in  money.  Ib. 

CAUSE  OF  ACTION,  13,  21 :  COSTS,  3,  10 :  EXECUTION,  1 :  JUDGMENT,  11 : 
LIMITATIONS  OF  ACTIONS,  2:  SURROGATE'S  COURT  :  WITNESS. 

EXTRADITION. 

1.  In  order  to  give  the  governor  of  a  State  jurisdiction  to  issue  his  warrant 
for  the  rendition,  under  the  Constitution  of  the  United  States,  of  a  fugitive 


NEW  TOEK :  1866.  507 


FORECLOSt'BE. 


from  justice  of  another  State,  the  fugitive  must  be  demanded  by  the  exe- 
cutive of  the  latter  State,  a  copy  of  the  indictment  or  affidavit  before  a 
magistrate  charging  the  offence  must  be  produced,  and  such  copy  must  be 
certified  as  authentic  by  the  executive.  N.  Y.  City  Judge,  1866,  Solo- 
man's  Case,  Ante,  347. 

2.  An  affidavit  sworn  before  a  justice  of  the  peace,  and  a  certificate  by  the 
executive,  that  he  is  such  officer,  and  that  his  attestation  is  in  due  form 
is  not  sufficient  in  this  respect.  2b. 

FEIGNED  ISSUES. 
SURROGATE'S  COURTS,  4  :  TRIAL,  3,  4, 

FENCES. 

The  provisions  of  the  Revised  Statutes  as  to  division  fences,  and  proceedings 
relative  thereto,  amended.  2 Laws  of  1866,  1150,  ch.  540. 

FORECLOSURE. 

1.  After  default  in  the  payment  of  a  chattel  mortgage,  which  gives  the  mort- 
gagee power  to  sell,  without  specifying  the  mode,  a  sale  at  private  sale, 
without  notice  to  the  mortgagee,  if  made  fairly  and  in  good  faith,  is  valid. 
The  fact  that  the  power  of  sale  on  default  is  merely  t;  to  sell,"  without 
specifying  the  mode,  while  another  clause  is  inserted  giving  power,  in  case 
of  insecurity,  "  to  sell  at  public  or  private  sale,"  is  not  to  be  regarded  as 
intended  to  make  a  distinction  between  the  modes  of  sale  in  the  two 
cases.  Supreme  Ct.t  1865,  Chamberlain  v.  Martin,  43  Barb.,  607. 

3.  Where  there  has  been  a  sale  of  mortgaged  premises,  pursuant  to  a  power 
under  the  statute  [3  Rev.  Stat.,  547,  §8]  the  equity  of  redemption  of  the 
mortgagor  is  thereby  foreclosed  ;  notwithstanding  the  affidavit  of  the  pub- 
lication of  notice  of  sale,  and  of  the  posting  thereof,  is  not  made  and  re- 
corded as  required  by  statute  for  twenty  yesrs  thereafter.  Ko  time 
is  fixed  by  statute  for  making  and  recording  any  of  the  affidavits 
prescribed  ;  and  the  delay  in  making  and  recording  them  does  not  extend 
the  right  of  redemption.  The  right  of  the  mortgagor  to  redeem  is  termi- 
nated whenever  there  has  been  a  sale  of  the  mortgaged  premises,  regularly 
made,  either  pursuant  to  the  power  contained  in  the  mortgage,  or  under  a 
decree  of  ffile.  Ct.  of  Appeals,  1865,  Tuthill  v.  Tracy,  31  N.  7.,  157. 

3.  Where  there  are  surplus  moneys  in  the  hands  of  the  mortgagee,  arising 
upon  the  foreclosure  of  a  mortgage  under  the  statute,  and  two  several 
actions  have  been  brought  by  judgment  creditors  of  the  mortgagor  to  ob- 
tain such  surpl-is,  to  be  applied  on  payment  of  their  respective  judgments, 
and  a  reference  has  been  ordered  to  determine  to  wliom,  as  between  the 
plaintiffs,  the  same  shall  be  delivered,  and  neither  party  appeals  from  such 
order,  or  applies  for  an  order  for  the  referee  to  report  the  evidence,  the 
proceeding  must  be  treated  in  all  respects  like  an  order  made  in  pursuance 
of  the  76th  rule  of  the  Supreme  Court,  to  settle  the  right  to  surplus  mon- 
eys in  foreclosure  cases.  By  omitting  to  appeal  from  such  order  of  re- 


508  ABBOTTS'  PRACTICE  DIGEST. 


FORMER   ADJUDICATION. 


ference,  both  parties  consent  to  that  method  of  determining  their  respec- 
tive rights.    Ct.  of  Appeals,  1865,  Kirby  v.  Fitzgerald,  31  N.  Y.,  417. 
CO-ITS,  12  :  COUNTY  COUKT,  1. 

FORMER  ADJUDICATION. 

1.  Where  a  claim  has  been  interposed  in  a  former  action,  by  way  of  set-off, 
and  has  been  duly  passed  upon  in  such  action,   it   is   res   adjudicata,  and 
the  former  action  is  a  bar  to  a  new  action  by  the  defendant  against  the 
plaintiff  in  the  former  suit.    N.  Y.  Com.  PL,  1862,  Rogers  v.  Rogers,  1 
Daly,  194. 

2.  "Where  it  appears,  in  an  action  before  a  justice  of  the  pence,  that  the  title 
to  land  is  in  question,   and   that  such  title  is  disputed  by  the  defendant, 
the  justice  is  prohibited  from  taking  cognizance  of  the  action,  and  is  bound 
to  dismiss  it ;  and  if  he  proceeds  in  the  suit,   after  it  so  appears  that  the 
title  to  land  is  in  question,  and  is  disputed,  his  proceedings  are   without 
authorhy;  and  his  judgment  is  void  for  want  of  jurisdiction,  and  is  not 
admissible  in  a  subsequent  suit  between  the  same  parties,  for  the  purpose 
of  establishing  the  fact  the  question  involved  was  res  adjudicata.  Supreme 
Ct.,  1864,  Gage  v.  Hill,  43  Barb.,  44. 

3.  Relief  on  habeas  corpus  is  not  to  be. refused  in  a,  proper  case  upon  the 
ground  that  upon  a  prior  writ,  issued  by  another  judge,   relief  has  been 
refused,  if  it  appears  upon  the  second  application  that  essentially  different 
facts  are  involved  from  those  which  were  presented  on  the  first  applica- 
tion.    City  Judge  of  N.  Y.,  1866,  People  v.  Kelly,  1  Abb.  Pr.  N.  S.,  432. 

4.  A  judgment  in  favor  of  the  defendants,  in  an  action  to   recover  the  price 
or  goods  sold,  which  proceeded  upon  the  ground  that  they  were  sold  on  a 
credit  which  had  not  expired  when  the  action  was  brought,  is  not  a  bar  to 
a  second  action,  brought  after  the  credit  has  expired.    N.  Y.  Superior  Ct., 
1863,  Wilcox  v.  Lee,  Ante,  250. 

5.  Where  such  judgment  docs  not  affirmatively   disclose  the  ground  upon 
which  it  proceeded,  but  there  was  uncontradicted  proof  of  such  unexpired 
credit,  and  the  existence  of  such  credit  was  the  only  question  argued  on 
submitting  the  case,  it  will  be  inferred  that  the  judgment  proceeded  sole- 
ly on  that  ground,  although  evidence  in  support  of  another  defence  was 
given  on  the  trial.    Ib. 

6.  That  the  courts  have  no  power,  in  collateral  proceedings,  to  inquire  whe- 
ther the  facts  upon  which  a  board  of  health  determine  a  thing  to  be  a  nui- 
sance justify  its  conclusion.     [15   Wend.,  262.]    N.  Y.  Com.  PL,  1862, 
McLaren  v.  Mayor  of  New  York,  1  Daly,  243 . 

7.  Where  the  affidavit  of  the  defendant  in  summary  proceedings  to  dispos- 
sess for  the  non-payment  of  rent  raises  two  questions,  and  the  jury  finds 
generally  for  the  defendant,  both  questions  are  presumptively  res  adjudi- 
cata;  and  in  a  subsequent  proceeding,  iii  which  one   of  such  questions 
arises,  it  is  for  the  plaintiff  to  show  that  it  was  not  passed  upon  by  the 
jury.     N.  Y.  Com.  PL,  1865,  Yonkers  and  New  York  Fire  Insurance  Co, 
v.  Bishop,  1  Daly,  449. 

JUDGMENT:  JUSTICE  COURT,  15  :  RELIGIOUS  CORPORATIONS,  8. 


NEW  YORK:   1866.  509 


HABEAS   COBPCS. 


GOOD-WILL. 

1.  A  retiring  partner,  who  releases  and  assigns  all  his  interest  in  the  good- 
will of  the  business  cf  the  firm  to  his  copartner,   does  not  thereby  relin- 
quish his  right  to  establish  and  carry  on  a  business  similar  to  that  of  the 
late  firm,  so  long  as  he  does  no  act  to  mislead  customers  into  the  belief 
that  he  is  carrying  on  business  as  the  successor  of  the  old  firm,   or  that 
when  dealing  with  him,  they  are  dealing  with  such  successor.      N.  Y.  Su- 
perior Ct.,  I860,  White  v.  Jones,  Ante,  328. 

2.  Nor  does  one  who  was  formerly  bookkeeper  of  the  late  firm,  and  who,  up- 
on its  dissolution,  (mites  with  such  retiring  partner  in  establishing  such 
new  business,  thereby  become  liable  to  an  action,  by  the  purchaser  of  the 
good-will,  for  an  injunction  or  damages.     16. 

GRAND  JURY. 

An  indictment  should  not  be  quashed  upon  the  ground  that  there  was  not 
sufficient  evidence  before  the  grand  jury,  if  there  was  before  them  testi- 
mony upon  whicb,  on  their  oaths,  they  could  fairly  act.  If  they  have 
some  evidence,  it  is  for  them  to  determine  its  weight.  N.  Y.  General  Ses- 
ions,  1865,  The  People  v.  Strong,  Ante,  244. 

HABEAS    CORPUS. 

1.  A  State  court  has  power  to  issue  a  writ  of  habeas  corpus  in  a  case  where  the 
party  detained  is  held  or  claimed  to  be  held  under  the  authority  of  the  laws 
of  the  United  States.      Supreme  Ct.,  Sp.  T.,  1865,  The  People  v.  Gaul, 
44  Barb.,  98. 

2.  A  magistrate,  before  whom  a  prisoner  is  brought  upon  habeas  corpus, 
charged  with  a  crime  which  is  indictable  under  the  statutes  of  the  State, 
but  which  is  not  cognizable  by  the  military  tribunals,  for  trial   before 
which  he  is  held,  should,  on  discharging  the  prisoner  «from  military  cus- 
tody, commit  him,  if  the  proof  be  sufficient,  to  the  civil  authorities,  to  be 
proceeded  against  by  law  in  the  conrts  of  the  State.     Supreme  Ct.,  Cham- 
bers, 1865,  Matter  of  Martin,  45  Barb.,  142. 

3.  Where  the  return  to  a  habeas  corpus  shows  a  detainer  under  legal  process, 
the  only  proper  points  for  examination  are  the  existence,  validity,  and 
present  legal  force  of  the  process;  except  where,  in  commitments  for  crim- 
inal matters,  the  court  or  officer  hearing  the  habeas  corpus  is  invested  with 
revisory  or  corrective  jurisdiction  over  the  court  or  officer  commanding  the 
imprisonment,  and  with  a  jurisdiction  also  over  the  offence,  or  subject- 
matter  of  the  commitment ;   in  which  case  the  facts  constituting  the 
grounds  of  the  commitment  may  be  reviewed.     City  Judge  of  N,  Y.,  1866, 
People  v.  Kelly,  Ante,  432. 

4.  The  habeas  corpus  can  not  have  the  force  and  operation  of  a  writ  of  error, 
or  a  certiorari;  nor  is  it  designed  as  a  substitute  for  either.     It  does  not, 
like  them,  deal  with  errors  or  irregularities,  which  render  a  proceeding 
voidable  only  ;  but  with  those  radical  defects  which  render  it  absolutely 
void.    Ib. 


510  ABBOTTS'  PRACTICE  DIGEST. 


IKDICTMEKT. 


5.  Illegality  signifies  that  which  is  contrary  to  the  principles  of  law,  and  de- 
notes "  a  complete  defect  in  the  proceedings."     Ib. 

6.  Hence,  where  a  defendant  has  been  arrested  a  second  time,  after  a  dis- 
charge and  exoneration  for  imprisonment  from  the  same  cause  in  another 
action,  he  may  be  discharged  on  habeas  corpus,  notwithstanding  relief 
might  be  had,  on  motion,   iu  the  court  from  which   the  process  was 
issued.     Ib. 

FORMER  ADJUDICATION,  3 :   NEW  YORK,  5. 

HIGHWAYS. 

Under  the  various  statutes  relating  to  proceedings  for  opening  roads,  the 
county  judge,  upon  an  appeal  to  him  from  the  decision  of  a  jury,  certifying 
to  the  necessity  of  a  private  road,  and  from  an  order  of  commissioners  of 
highways  laying  out  such  road,  has  authority  to  dispose  of  the  appeal  in 
the  manner  prescribed  by  statute  in  respect  to  public  roads ;  which  in- 
cludes the  power  to  appoint  referees  to  hear  such  appeal.  Supreme  Ct., 
1864,  West  v.  McGurn,  43  Barb.,  198. 

CERTIORARI,  7:  EXECUTORS  AND  ADMINISTRATORS,  6. 

INDEMNITY. 

Mutilated  note  of  which  the  part  which  is  lost  does  not  contain  negotiable 
words,  not  a  lost  note  within  the  rule  requiring  a  bond  of  indemnity  to 
be  given  on  demanding  payment  oi  lost  notes.  N.  Y.  Com.  PL,  1863, 
Martin  v.  Blydenburg,  1  Daly,  314. 

INDICTMENT. 

1.  Although,  as  a  general  rule,  criminal  complaints  must  originate  in  the  po- 
lice offices,  and  the  court  will,  on  motion,  relieve  against  an  indictment  if 
it  originated  with  the  grand  jury;  yet  where  the  interference  of  that 
body  is  necessary  to  prevent  the  statute  of  limitations  from  attaching,  the 
indictment  will  not  be  quashed  on  that  ground.      N.  Y.  Gen.  Sess.,  1865, 
People  v.  Strong,  Ante,  244. 

2.  It  makes  no  difference  in  such  a  case  that  the  prosecution  might  have 
brought  the  offence  to  the  knowledge  of  the  authorities  at  an  earlier 
time.    16. 

3.  Even  after  the  arraignment  of  the  prisoner,  and  plea,  and  part  of  the  jury 
called,  the  court  have  no  power  to  postpone  the  cause,  and  such  commence- 
ment of  a  trial  cannot  be  pleaded  in  bar  of  a  second  indictment  for  the 
same  offence.     Supreme  Ct.,  1865,  People  v.  Ferris,  Ante,  193. 

4.  It  seems,  that  it  is  only  in  very  clear  cases  that  a  prisoner  should  be  al- 
lowed to  withdraw  his  plea  and  move  to  quash  the  indictment,  without  the 
consent  of  the  prosecuting  attorney.    People  v.  Strong,  Ante,  244. 

VARIANCE,  2. 


NEW  YOKE:  1866.  511 


INJUNCTION. 


INJUNCTION. 

1.  Where  the  conditions  of  dissolution  of  a  partnership  were  such  that  the 
retiring  partner  had  the  right  to  open,  and  att'end  to,  for  his  own  benefit, 
letters  thereafter  addressed  to  the  late  firm,  upon  certain  subjects  of  busi- 
ness ; — Held,  that  the  mere  fact  that  he  opened,  and  answered,  in  his  own 
name,  and  for  his  own  benefit,  two  fictitious  or  "  decoy  "  letters,  addressed 
to  the  late  firm  at  the  instance  of  the  plaintiff,  their  successor,  and  purport- 
ing to  be  upon  business  which  the  former  had  not  the  right  to  attend  to, 
did  not  authorize  the  court  to  interfere  by  action  and  injunction.     N.   Y. 
Superior  Ct.,  1863,  White  v.  Jones,  Ante,  328. 

2.  Where  the  plaintiff  had  made  advances  for  the  benefit  of  a  vessel,  and 
had  taken  an  assignment  of  the  master's  lien  on  the  freight  therefor,  and 
the  owners  of  the  vessel  were  insolvent ; — Held,  a  proper  case  for  an  injunc- 
tion, and  the  appointment  of  a  receiver  to  collect  such  freight,  notwith- 
standing the  allegations  of  the  answer  and  affidavits  showed  that  the  de- 
fendants had  chartered  the  vessel  from  the  owner  for  such  voyage.    N.  Y 
Com.  PL,  1859,  Sorley  v.  Brewer,  1  Doty,  79;  afiirming  S.  C.,  18  How.  Pr., 
276,  509. 

3.  An  injunction  will  not  lie  at  the  suit  of  the  owner  of  a  wharf  or  bulkhead, 
having  a  mere  easement  in  the  nature  of  wharfage,  in  respect  to  the  land 
under  water  in  front  thereof,  to  prevent  the  erection  of  a  pier  or  wharf  by 
an  adjoining  owner,  under  the  sanction  of  public  authority.     N.    Y.  Sit- 
preme  Ct.,  1865,  Taylor  v.  Brookman,  Ante,  169. 

4.  If  injured  by  such  erection,  his  remedy  is  by  an  action  for  damages  for 
the  obstruction  of  his  easement ;  or,  if  he  can  show  title  to  the  land  on 
which  the  erection  is  made,  by  an  action  to  recover  possession  thereof.  16. 

5.  The  court  will  not,  upon  a  preliminary  injunction,  decide  a  question  in- 
volving a  forfeiture  of  corporate  rights ;  nor  usually  grant  a  preliminary 
injunction  if  there  is  to  be  a  trial  involving  such  important  rights,  unless 
it  appears  from  the  papers  before  the  court  that  serious  injury  will  follow 
the  refusal  of  it.  Supreme  Ct.,  Sp.  T.,  1865,  People  v.  Harlem  Bridge  Co., 
Ante,  169,  note. 

6.  In  cases  of  cross-indebtedness  growing  out  of  mutual  dealings,  a  court  of 
equity  will  always  interpose  to  set  off  one  debt  against  the  other,  and  ad- 
judge the  balance  to  be  the  sum  equitably  due ;  and  if  the  action  is  main- 
tamable,  an  injunction  to  prevent  one  party  who  holds  a  negotiable  note 
from  disposing  of  it,  ia  proper.    N.  Y.  Com.  PL,  1863,  Schieffelin  v.  Haw-r 
kins,  1  Daly,  289. 

7.  Directors  or  trustees  of  a  corporation  may  be  restrained  by  injunction 
from  committing  fraudulent  acts  charged ;  but  such  injunction  should 
apply  only  to  the  particular  acts  complained  of,  and  not  to  the  general 
business  of  the  corporation.     Supreme  Ct.,  1865,  Howe  v.  Deuel,  43  Barb., 
505. 

8.  Injunctions  may  be  issued  to  restrain  violations  of  Fire  and  Building  lawa 
of  the  City  of  New  York.    2  Laws  of  1866,  2029,  ch.  873,  §  35. 


512  ABBOTTS'  PRACTICE   DIGEST. 


9.  After  the  Legislature  have  granted  the  right  to  lay  a  railroad  through 
city  streets,  the  courts  will  not  restrain,  by  injunction,  persons  to  whom 
a  subsequent  grant  has  been  made,  of  the  power  to  use  the  same  streets, 
crossing  and  passing  along  the  same  track,  upon  making  compensation  for 
the  use  thereof.     Supreme  Ct.,  1864,  Sixth  Avenue  R.  R.  Co.  v.  Kerr,  45 
Barb.,  138. 

10.  Injunction  allowed  to  restrain  laying  a  city  railroad  track — in  a  partic- 
ular case.  Dry-dock  R.  R.  Co.  v.  N.  Y.  &  Harlem  R.  R.  Co.,  30  How.  Pr.,  39. 

11.  Injunction  against  interference  with  property  on  a  guano  island  in  the 
Pacific.    American  Guano  Co.  v.  U.  S.  Guano  Co.,  44  Barb.,  23. 

12.  An  injunction  is  not  to  be  granted  upon  the  ground  that  it  will  prevent  fi 
multiplicity  of  suits,  where  there  are  only  two  actions  for  the  same  cause. 
Two  suits  have  never  been  considered  sufficient  to  sustain  a  bill  in  equity 
for  such  cause.     The  fact  that  the  suits  were  commenced  by  attachment 
does  not  alter  the  rule.  Supreme  Ct.,  1866,  Mclienry  v.  Hazard,  45  Barb., 
657. 

13.  That  an  injunction  against  public  officers  sued  by  their  individual  names 
would  not  bind  their  successors  or  the  public.    Supreme  Ct.,  1863,  Magee 
v.  Cutler,  43  Barb.,  239. 

14.  In  an  action  brought  to  establish  the  plaintiffs'  title  to  certain  chattels, 
the  plaintiffs  on  the  usual  undertaking  obtained  an  injunction  restraining 
the  defendants  from  interfering  with  the  property,  and  under  shelter  of 
that  injunction,  took  away  the  property,  and  disposed  of  it,  so  that  it  was 
irrecoverably  lost  — Held,  that  on  a  reference  to  ascertain  damages  sus- 
tained by  the  injunction,  the  referee  was  right  in  allowing  the  defendants 
the  value  of  the  property.     Ct.  of  Appeals,  1864,  Barton  v.  Fisk,  30  N.  Y., 
166. 

15.  If  the  property  had  remained  specifically  the  same  during  the  litigation, 
and  at  its  conclusion  had  been  within  the  defendant's  reach,  the  damages 
would  have  been  such  as  resulted  from  their  being  deprived  of  its  use 
ptndente  lite,  and  from  any  depreciation  in  value.     But  under  the  existing 
facts,  it  is  the  same  as  though  it  had  been  destroyed,  while  the   owners 
were  prevented  from  extending  their  hands  for  its  preservation.  The  argu- 
ment that  the  loss  was  not  occasioned  by  the  injunction,  but  by  the  tor- 
tious  act  of  the  plaintiff  and  his  assistant,  unconnected  with  that  process, 
was  too  narrow  a  view  of  the  question.    The  efficient  cause  of  the  less  was 
the  inability  of  the  defendants,  caused  by  the  injunction,  to  preserve  the 
property.     Ct.  of  Appeals,  1864,  Barton  v.  Fisk,  30  N.  1%  166. 

CORPORATION  :  'GOOD-WILL,  1,  2 :  LIMITATION  or  ACTIONS,  4. 

INQUEST. 

After  the  lapse  of  two  years  from  the  entry  of  judgment  upon  an  inquest, 
and  the  giving  notice  thereof  to  the  defendant,  the  parties  having  been 
resident  within  the  jurisdiction  of  the  court,  a  motion  to  open  the  inquest 
will  not  be  entertained.  N.  Y.  Superior  Ct.,  Sp.  T,,  1864,  Hendricks  v. 
Carpenter,  Ante,  213. 


NEW  YORK  :  1866.  513 


INSURANCE. 


INSOLVENCY. 

1.  In  proceedings  for  the  discharge  of  an  insolvent  from  his  debts,  under  2 
Rev.  Stat.,  35,  the  omission  of  a  petitioning  creditor  to  relinquish  a  secur- 
ity held  by  him,  does  not  affect  the  jurisdiction  of  the  officer,  nor  avoid 
the  discharge,  even  though  his  petition  disclosed  the  existence  of  such  se- 
curity. N.  Y.  Superior  Ct.,  18G3,  Soule  v.  Chase,  Ante,  48. 

2.  Nor  is  the  proof  of  publication  of  notice  of  the  order  to  creditors  to  show 
cause,  essential  to  give  jurisdiction.    >A  discharge  which  recites  due  pub- 
lication and  that  due  proof  thereof  was  presented,  is  not  invalidated  by  de- 
fects in  the  notice,  its  publication,  or  the  proof  thereof,  on  file.     Ib. 

3.  The  statute  does  not  require  publication  for  a  certain  length  of  time,  but 
ten  publications,  each  within  so  many  successive  weeks,  the  commence- 
ment of  which  is  determined  by  the  first  publication.     16. 

4.  The  petitions  and  schedules  need  not  state  the  grounds  of  the  demands 
of  creditors  viith  such  particularity  as  is  required  in  a  statement  for  judg- 
ment by  confession  •  and  it  seems  that  want  of  sufficient  particularity  does 
not  affect  the  jurisdiction  of  the  officer.     Ib. 

DISCHARGE:  NOTICE,  1,2. 

INSURANCE. 

1.  Where  a  policy  of  insurance  upon  a  stock  of  merchandise  covered  the  goods 
sold  but  not  delivered,  and  its  printed  conditions  provided  that  "  in  case  of 
any  transfer  or  termination  of  the  interest  of  the  insured  in  the  property, 
by  sale  or  otherwise,    *     #    *     the  policy  shall  be  void;"  and  "that  in 
case  of  any  sale,  alienation,  transfer  or  change  of  title  in  the  property  in- 
sured,    *     *      *     or  of  any  individual  interest  therein,  such  insurance 
shall  be  void ;  and  the  entry  of  a  foreclosure  of  a  mortgage,  or  the  levy 
of  an  execution,  or  an  assignment  for  the  benefit  of  creditors,  shall  be 
deemed  an  alienation  of  the  property ;" — Held,  that  the  giving  of  a  chat- 
tel mortgage  upon  the  goods,  without  parting  with  the  possession,  or  the 
right  to  possession,  did  not  avoid  the  policy.   The  words  "  sale,  alienation 
or  transfer  "  should  be  construed  to  mean  some  act  which  divests  the  title 
absolutely.      JV.  Y.  Superior  Ct,  1863,  Van  Deusen  v.  The  Charter  Oak 
Fire  and  Marine  Insurance  Company,  Ante,  349. 

2.  If  insurers,  having  insured  one  who  has  a  special  property  in  gDods,  for  ac- 
count of  whom  it  may  concern,  after  a  loss  and  abandonment,  intervene 
and  recover  a  part  of  the  goods,  as  they  have  a  right  to  do,  and  receive 
the  proceeds,  without  knowing  the  owner,  and  are  subsequently  sued  by 
the  owner,  for  money  received,  they  are  not  liable  fo»  interest  for  the  pe- 
riod before  they  had  notice  of  his  claim;  and  in  such  action  the  necessary 
expenses  of  the  defendants,  paid  in  recovering  and  selling  the  goods  in- 
sured, are  to  be  allowed  to  the  defendants,  to  be  deducted  from  the  pro- 
ceeds.     N.  Y.  Superior  Ct.,  1863,  Robinson  v.  Corn  Exchange  Insurance 
Company,  Ante,  186. 

3.  Where  insurers  received  and  examined  the  proofs  of  loss  presented  by  the 

N.  S.— YOL.  I.— 33. 


514  ABBOTTS'  PKACTICE  DIGEST. 


JOINDKE   OF  ACTIONS. 


insured,  and",  in  answer  to  subsequent  inquiries  on  his  part,  whether  there 
were  any  further  proofs  that  he  could  show,  or  anything  further  was 
wanted  of  him,  answered  that  there  was  not,  and  afterward  offered  to 
compromise  the  claim,  but  without  making  any  objection  to  the  proofs  ; — 
Held,  that  they  could  not  defeat  his  action  on  the  policy  by  objecting  that 
the  magistrate's  certificate,  which  the  policy  required  should  accompany 
the  proofs  of  loss,  was  never  served  on  them.  JV.  Y.  Superior  Ct.,  1863, 
Van  Deusen  v.  The  Charter  Oak  Fire  and  Marine  Insurance  Company, 
Ante,  349. 

CONTRIBUTION:  LIMITATION  OF  ACTION,  7:  PARTIES,  22. 

INTEREST. 

1.  The  old  common  law  rule,  which  requires  a  demand  to  be  liquidated,  or 
ite  amount  ascertained,  before  interest  can  be  allowed,  has  been  so  far 
modified,  that  if  the  amount  is  capable  of  being  ascertained,  it  carries  in- 
terest.    Supreme  Ct.,  1865,  Graham  v.  Chrystal,  Ante,  1M2. 

2.  Where  insurers,  having  insured  one  who  has  a  special  property  in  goods, 
for  account  of  whom  it  may  concern,  after  a  loss  and  abandonment  intervene 
and  recover  a  part  of  the  goods,  as  they  have  a  right  to  do,  and  receive 
the  proceeds,  without  knowing  the  owner,  the  latter  cannot,  in  an  action 
against  them  for  money  had  and  received,  recover  interest  thereon  for  the 
time  elapsing  before  they  had  any  notice  of  his  claim.     N.  Y.  Superior  Ct., 
1863,  Robinson  v.  Corn  Exchange  Insurance  Company,  Ante,  186. 

EXECUTORS  AND  ADMINISTRATORS,  4,  5. 

INTERPLEADER. 

1.  An  action  cannot  be  sustained  as  being  a  case  for  interpleader,  where  the 
plaintiff  denies  any  liability  to  either  of  the   defendants,  and  neither 
admits  that  anything  is  due  to  one  of  them,  nor  offers  to  bring  the  amount 
in  dispute  into   court.      Supreme   Ct.,  1866,   McHenry   v.   Hazard,  45 
Barb.,  657. 

2.  Neither  can  the  action  be  sustained  in  such  a  case  by  considering  it  an  ac- 
tion in  the  nature  of  a  bill  of  interpleader,  to  prevent  danger  of  a  double 
recovery  against  the  plaintiff.    An  action  in  the  nature  of  a  bill  of  inter- 
pleader can  only  be  sustained  where  the  parties  sought  to  be  interpleaded 
have  some  right  or  interest  in  the  subject-matter  of  the  action,  which  in- 
terferes with  the  plaintiff's  attempts  to  establish  his  own  rights.     Ib. 

i 

JOINDER  OF  ACTIONS.' 

In  an  action  against  a  sheriff,  two  causes  of  action,  one  for  detaining  the 
plaintiff's  property,  the  other  for  wrongfully  and  negligently  injuring  it 
while  in  his  possession  as  sheriff,  may  be  joined  in  one  action.  Both  are 
to  be  regarded  as  arising  out  of  the  same  transaction,  and  if  they  were 
not  BO  to  be  regarded,  the  defendant  should  demur;  and  by  omitting  to  do 
so  he  waives  the  question.  Supreme  Ct.,  1864,  Smith  v.  Orser,  43 

Barb.,  187. 

TRIAJ.,  7. 


NEW  YORK  :  1866.  515 


JUDGMENT 


JOINT  DEBTORS. 

1.  Section  372  of  the  Code  of  Procedure  amended  to  read  as  follows:  Upon 
such  summons  any  party  summoned  may  answer  within  the  time  specified 
therein,  denying  the  judgment,  or  setting  up  any  defence  thereto  which 
ma}'  have  arisen  subsequent  to  such  judgment;  and  in  addition  thereto,  if 
the  party  be  proceeded  against  according  to  section  875,  he  may  make  any 
defence  which  he  miu'ht  have  made  to  the  action  if  the  summons  had  been 
served  on  him  at  the  time  when  the  same  was  originally  commenced,  and 
such  defence  had  been  then  interposed  to  such  action.     Code  of  Pro..  §  377 
as  amended  by  2  Laws  of  18G6,  1844,  cli.  824,  $  15. 

2.  Where  joint  debtors  are  sued,  and  judgment  had  against  all  in  form 
without  service  on  all,  the  defendants  not  served  are   not  "judgment 
debtors"  within  the  meaning  of  the  provision  of  the  Code  of  Procedure, 
($  380),  which  authorizes  summoning  the  representatives  of  a  deceased 
judgment  debtor  to  show  cause  why  the  judgment  should  not  be  enforced 
against  his  estate  in  their  hands.     N.  Y.  Com.  PI.,  1866,  Foster  v.  Wood, 
Ante,  150. 

3.  The  proper  remedy  of  a  judgment  creditor  in  such  a  case,  is  to  preseat  his 
demand  to  the  executors  or  administrators,  and. if  they  refuse  to  pay  it,  or 
to  refer  the  claim,  to  bring  his  action  thereon.     Ib. 

JOINT    LIABILITY. 

An  action  may  be  maintained  against  principal  and  agent  jointly  for  a  per- 
sonal injury  occasioned  by  the  negligence  of  the  agent.-    So  held,  where 
-  the  negligent  act  of  the  agent  was  committed  in  the  absence  of  the  prin- 
cipal.    [19  Wend.,  343;  3  E.  D.  Smith,  591 ;  8  Barb.,  385  ;  10  Am.  Law 
Reg.,  505.]     Ct.  of  Appeals,  1864,  Phelps  v.  Wait,  30  N.  Y.,  78. 

JUDGE. 
CONTEMPT,  3 :  REFERENCE,  7. 

JUDGMENT. 

1.  Where  there  is  only  one  issue,  and  the  intention  of  the  jury  to  find  for  the 
plaintiff  is  manifest,  the  .court  will,  in  case  of  a  mistake  by  them,  correct 
their  verdict  by  making  it  ccnform  to  their  finding,  and  give  judgment 
upon  it  accordingly.    N.  Y.  Com.  Pleas,  1865,  Wells  v.  Cox,  1  Daly,515. 

Consult  also  AMENDMENT. 

2.  Thus,  where  on  the  trial  the  court  charged  the  jury  that  if  their  finding 
was  in  favor  of  the  plaintiff,  the  amount  due  him  was  only  a  specified  sum, 
and  the  jury  found  for  the  plaintiff,  but  forgetting  the  amount  given  by 
the  court,  returned  a  sealed  verdict  for  the  plaintiff  "  for  the  whole  amount 
claimed,  and  interest," — Held,  that  the  court  could,  on  motion,  correct  the 
verdict  by  inserting  in  it  the  sum  stated  in  the  charge.     Ib. 

3.  If,  in  equitable  actions,  all  the  quastions  in  controversy  between  the  par- 
ties have  been  determined  upon  the  hearing,  and  what  remains  is  merely 
the  machinery  set  in  motion  by  the  court  to  carry  its  decision  into  effect, 


516  ABBOTTS'    PKACTICE   DIGEST. 


JUDGMENT. 


its  decision  is  final.  But  if  anything  is  left  involving  future  litigation 
the  determination  upon  which  might  affect  the  ultimate  adjustment  of  the 
rights  of  the  parties,  the  decision,  decree  or  order  made,  is  merely  inter- 
locutory. [8  Wend.,  224;  12  Johns.,  500;  17  Id.,  558;  7  Paige,  18;  2 
Daniels'  Ch.  Pr.,  638,  682.]  And  this  is  a  distinction  which  still  exists 
necessarily  in  actions  for  equitable  relief.  N.  Y.  Com.  Pleas,  1865;  Smith 
v.  Lewis,  1  Daly,  452. 

4.  An  order  for  the  continuance  of  the  term  of  the  court  of  sessions  beyond 
the  third  week  need  not  T>e  incorporated  in  the  record  of  judgment  on  a 
conviction  had  during  such  continuance.  N.  Y.  Supreme  Ct.,  1865,  People 
v.  Ferris,  Ante,  193. 

5.  An  order  appointing  the  plaintiff  receiver  of  the  property  of  B.,  a  judg- 
ment debtor,  was  founded  on  a  demand  owing  by  P.  &  B.,  as  copartners, 
The  property  in  the  hands  of  their  assignees,  and  which  the  latter  were 
directed  by  the  judgment  to  transferee  the  plaintiff,  was  the  separate 
property  of  B.     The  judgment  also  directed  the  receiver  to  apply  the 
avails  of  said  separate  property  to  the  payment  of  the  said  copartnership 
demand ; — Held,  that  the  judgment  was  erroneous,  in  the  absence  of  any 
evidence  that  the  separate  debts  of  B.  had  been  paid.     In  equity,  the  sep- 
arate estate  of  partners  is  not  liable  for  partnership  demands  until  the 
partnership  effects  are  exhausted,  and  the  separate  debts  paid.     Supreme 
Ct.,  1864,  Terry  v.  Butler,  43  Barb.,  295. 

6.  When  an  answer  is  struck  out  as  sham  and  irrelevant,  the  proper  method 
of  obtaining  judgment  is  to  proceed  as  if  no  answer  had  been  put  in.     If 
the  summons  be  for  relief,  the  defendant  is  entitled  to  the  usual  notice  of 
application  for  judgment,  after  the  answer  has  been  stricken  out.     N.  Y. 
Superior  Ct.,  1863,  De  Forest  v.  Baker,  Ante,  34. 

7.  A  judgment  entered  against  several  joint  debtors  upon  service  of  sum- 
mons upon  only  a  part  of  them,  is  a  judgment  in  form,  only,  as  against 
those  not  served.     N.  Y.  Com.  Pleas,  1866,  Foster  v.  Wood,  Ante,  150. 

8.  Where  one  partner,  without  the  knowledge  or  consent  of  his  copartners, 
indorsed  the  name  of  the  firm  upon  a  promissory  note  made  for  his  indi- 
vidual benefit,  and,  being  sued  upon  the  note,  he,  without  the  knowledge 
or  authority  of  the  other  partners,  upon  whom  process  had  not  been 
served,  employed  an  attorney  to  appear  not  only  for  himself,  but  for  them, 
and  judgment  was  rendered  against  all ; — Held,  notwithstanding  there  was 
an  appearance  by  attorney,  that  the  judgment  would  be  set  aside,  under 
such  circumstances,  against  the  other  partners,  and  that  they  would  be 
allowed  to  come  in  and  defend.    JV".  Y.  Com.  Pleas,  1865,  Bean  v.  Mather, 
1  Daly,  440. 

9.  Where  the  affidavits  presented  to  a  judge,  on-an  application  for  an  order 
of  publication,  tend  to  establish  the  requisite  jurisdictional  facts  to  au- 
thorize him  to  make  the  order,  his  error  in  the  decision  to  grant   the 
order  upon  such  evidence,  is  a  judicial  error,  which  cannot  be  ques- 
tioned in  a  collateral  proceeding.    But  if  the  judgment  has  been  set  aside, 
upon  the  ground  of  the  insufficiency  of  the  proofs  made  to  the  judge  as 
the  basis  of  the  order  for  publication,  it  is  no  longer  of  any  validity,  for 
any  purpose,  so  as  to  protect  any  persons  for  acts  done  under  it,  except 


NEW  YORK:  1806.  517 


JUDGHKNT. 


mere  ministerial  officers.  Supreme  Ct.,  1865,  Wells  v.  Thornton,  45  Barb., 
390. 

10.  Such  a  judgment  will  constitute  no  justification  or  protection  to  a  person 
not  a  party  to  the  suit,  who  delivers  up  to  the  receiver  appointed  therein, 
property  which,  as  a  bailee,  he  is  bound  to  keep  for  his  bailor.     Ib. 

11.  No  judgment  can  be  entered,  even  by  the  special  direction  of  a  court* 
upon  the  report  of  referees,  to  whom  a  controversy  between  the  receiver 

-  of  a  corporation  and  other  parties  is  referred,  pursuant  to  2  Rev.  Stat.,  45. 
Supreme  Ct.,  1805,  In  the  matter  of  Austin,  44  Barb.,  434. 

12.  Where  executors  or  administrators  are  sued  on  a  debt  of  their  decedent, 
judgment  for  the  plaintiff  should  be  in  terms  that  the  plaintiff  recover 
against  them  the  sum  mentioned  in  it,  to  be  levied  of  the  goods  and  chat- 
tels, &c.,  in  their  hands  as  executors,  &c.     Supreme  Ct.,  1806,  Bank  of 
Cooperstown  v.  Corlies,  Ante,  412. 

13.  Section  186  of  the  Code  of  Procedure, — which  prescribes  the  mode  of 
proceeding  in  an  action  against  several  defendants,  whore  the  summons  is 
served  on  a  part  only, — amended  by  adding  Hie  following  provision  :  If  the 
naire  of  one  or  more  parties  shall,  for  any  cause,  have  been  omitted  in  any 
action  iii  which  judgment  shall  have  passed  against  the  defendants  named  in 
the  summons,  and  such  omission  shall  not  have  been  pleaded  in  such  action, 
the  plaintiff,  in  case  the  judgment  therein  shdl  remain  unsatisfied,  may,  by 
action,  recover  of  such  partner  separately,  upon  proving  his  joint  liability, 
notwithstanding  he  may  not  have  been  named  in  the   original  action  ;  but 
the  plaintiff  shall  have  satisfaction  of  only  one  judgment  rendered  for  the 
same  cause  of  action.    2  Laws  0/18G6,  1837,  ch.  824,  §  5. 

14.  Section  385  of  the  Code  of  Procedure, — which  authorizes  the  defendant  to 
offer  to  allow  judgment  before  verdict, — amended  by  adding:  That  in  case 
the  defendant  shall  set  up  a  counter-claim  in  his  answer   to  an  amount 
greater  than  the  plaintiff's  claim,  or  sufficient  to  reduce  the  plaintiff's  recov- 
ery below  fifty  dollars,  then  the  plaintiff  may  serve  upon  the  defendant  an 
otter  in  writing  to  allow  judgment  to  be  taken  against  him  for  the  amount 
specified,  or  to  allow  said  counter-claim  to  the  amount  specified, 'with  costs. 
If  the  defendant  accept  the  offer,  and  give  notice  thereof  in   writing  within 
ten  days,  he  may  enter  judgment  as  above  for  the   amount  specified,  if  the 
offer  entitle  him  to  judgment,  or  the  amount  specified  in  s-.iid  otter  shall  be 
allowed  him  in  the  trial  of  the  action.     If  the  notice  of  acceptance  be  not 
given,  the  offer  is  to  be  deemed  withdrawn,  find  cannot  be  given  in  evidence ; 
and  if  the  defendant  ful  to  recover  a  more  favorable  judgment,  or  to  estab-   / 
lish  his  counter-claim  to  a  greater  amount  than  is  sped  lied  in  such  offer,  he 
cannot  recover  OOSIP,  but  must  pay  the  plaintiffVcosts  from  the  time  of -the    " 
otter.    2  Laws  of  1868,  1845,  ch.  824,  §  16. 

15.  Where  the  defendant,  after  service  of  an  offer  to  allow  the  plaintiff  to 
take  judgment  for  a  specified  sum,  and  within  the  ten  days  allowed  for  the 
plaintiff's  acceptance,  served  an  answer  and  counter-claim  demanding 
judgment  of  the  plaintiff  for  a  larger  sum  than  the  amount  of  the  offer, 
and  upon  the  trial  the  plaintiff  recovered  a  few  cents  less  than  the  defen- 
dant's offer  : — Held,  that  he  was  nevertheless  entitled  to  costs:  for  by  the 
extinguishment  of  the  counterclaim,  he  recovered  a  more  favorable  judg- 
moat.     Supreme  Ct.,  Tompkins  v.  Ives.  30  How.  Pr.,  13. 

15.  Judgment  may  be  rendered  against  one  defendant  alone,  in  the  marine 
court,  in  an  action  ex  delicto,  although  section  136  of  the  Code  does  not 
apply  to  the  marine  court.  N.  Y.  Com.  PL,  1861,  Ballard  v.  Lockwood, 
1  Daly,  158. 


516  ABBOTTS'    PRACTICE   DIGEST. 


J0DGMKNT. 


its  decision  is  final.  But  if  anything  is  left  involving  future  litigation 
the  determination  upon  which  might  affect  the  ultimate  adjustment  of  the 
rights  of  the  parties,  the  decision,  decree  or  order  made,  is  merely  inter- 
locutory. [8  Wend.,  224 ;  12  Johns.,  500 ;  17  Id.,  558 ;  7  Paige,  18 ;  2 
Daniels'  Ch.  Pr.,  638,  682.]  And  this  is  a  distinction  which  still  exists 
necessarily  in  actions  for  equitable  relief.  N.  Y.  Com.  Pleas,  1865,  Smith 
v.  Lewis,  1  Daly,  452. 

4.  An  order  for  the  continuance  of  the  term  of  the  court  of  sessions  beyond 
the  third  week  need  not  oe  incorporated  in  the  record  of  judgment  on  a 
conviction  had  during  such  continuance.  N.  Y.  Supreme  Ct.,  1865,  People 
v.  Ferris,  Ante,  193. 

5.  An  order  appointing  the  plaintiff  receiver  of  the  property  of  B.,  a  judg- 
ment debtor,  was  founded  on  a  demand  owing  by  P.  &  B.,  as  copartners, 
The  property  in  the  hands  of  their  assignees,  and  which  the  latter  were 
directed  by  the  judgment  to  transferee  the  plaintiff,  was  the  separate 
property  of  B.     The  judgment  also  directed  the  receiver  to  apply  the 
avails  of  said  separate  property  to  the  payment  of  the  said  copartnership 
demand  • — Held,  that  the  judgment  was  erroneous,  in  the  absence  of  any 
evidence  that  the  separate  debts  of  B.  had  been  paid.     In  equity,  the  sep- 
arate estate  of  partners  is  not  liable  for  partnership  demands  until  the 
partnership  effects  are  exhausted,  and  the  separate  debts  paid.     Supreme 
Ct.,  1864,  Terry  v.  Butler,  43  Barb.,  295. 

6.  "When  an  answer  is  struck  out  as  sham  and  irrelevant,  the  proper  method 
of  obtaining  judgment  is  to  proceed  as  if  no  answer  had  been  put  in.     If 
the  summons  be  for  relief,  the  defendant  is  entitled  to  the  usual  notice  of 
application  for  judgment,  after  the  answer  has  been  stricken  out.     N.  Y. 
Superior  Ct.,  1863,  De  Forest  v.  Baker,  Ante;  34. 

7.  A  judgment  entered  against  several  joint  debtors  upon  service  of  sum- 
mons upon  only  a  part  of  them,  is  a  judgment  in  form,  only,  as  against 
those  not  served.     N.  Y.  Com.  Pleas,  1866,  Foster  v.  Wood,  Ante,  150. 

8.  Where  one  partner,  without  the  knowledge  or  consent  of  his  copartners, 
indorsed  the  name  of  the  firm  upon  a  promissory  note  made  for  his  indi- 
vidual benefit,  and,  being  sued  upon  the  note,  he,  without  the  knowledge 
or  authority  of  the  other  partners,  upon  whom  process  had  not  been 
served,  employed  an  attorney  to  appear  not  only  for  himself,  but  for  them, 
and  judgment  was  rendered  against  all ; — Held,  notwithstanding  there  was 
an  appearance  by  attorney,  that  the  judgment  would  be  set  aside,  under 
such  circumstances,  against  the  other  partners,  and  that  they  would  be 
allowed  to  come  in  and  defend.    N.  Y.  Com.  Pleas,  1865,  Bean  v.  Mather, 
1  Daly,  440. 

9.  Where  the  affidavits  presented  to  a  judge,  on -an  application  for  an  order 
of  publication,  tend  to  establish  the  requisite  jurisdictional  facts  to  au- 
thorize him  to  make  the  order,  his  error  in  the  decision  to  grant  the 
order  upon  such  evidence,  is  a  judicial  error,  which  cannot  be  ques- 
tioned in  a  collateral  proceeding.    But  if  the  judgment  has  been  set  aside, 
upon  the  ground  of  the  insufficiency  of  the  proofs  mad"e  to  the  judge  as 
the  basis  of  the  order  for  publication,  it  is  no  longer  of  any  validity,  for 
any  purpose,  so  as  to  protect  any  persons  for  acts  done  under  it,  except 


NEW  YORK:  18(56.  51T 


JUDIiHKNT. 


mere  ministerial  officers.  Supreme  Ct.,  1865,  Wells  v.  Thornton,  45  Barb., 
390. 

10.  Such  a  judgment  will  constitute  no  justification  or  protection  to  a  person 
not  a  party  to  the  suit,  who  delivers  up  to  the  receiver  appointed  therein, 
property  which,  as  a  bailee,  he  is  bound  to  keep  for  his  bailor.     Ib. 

11.  No  judgment  can  be  entered,  even  by  the  special  direction  of  a  court* 
upon  the  report  of  referees,  to  whom  a  controversy  between  the  receiver 

-  of  a  corporation  and  ether  parties  is  referred,  pursuant  to  2  Rev.  Stat.,  45. 
Supreme  Ct.,  1805,  In  the  matter  of  Austin,  44  Barb..  434. 

12.  Where  executors  or  administrators  are  sued  on  a  debt  of  their  decedent, 
judgment  for  the  plaintiff  should  be  in  terms  that  the  plaintiff  recover 
against  them  the  sum  mentioned  in  it,  to  be  levied  of  the  goods  and  chat- 
tels, &c.,  in  their  hands  as  executors,  &c.     Supreme  Ct.,  1806,  Bank  of 
Cooperstown  v.  Corlies,  Ante,  412. 

13.  Section  136  of  the  Co.le  of  Procedure, — which  prescribes  the  mode  of 
proceeding  in  an  action  against  several  defendants,  where  tlie  summons  is 
served  on  a  part  only, — amended  by  adding  tlie  following  provision  :  If  the 
naire  of  one  or  more  parties  shall,  for  any  cause-,  have  been  omitted  in  any 
action  in  which  judgment  shall  have  passed  against  the  defendants  named  in 
the  summons,  and  such  omission  shall  not  have  been  pleaded  in  such  action, 
the  plaintiff,  in  case  the  judgment  the 'em  slnll  remain  unsatisfied,  may,  by 
action,  recover  of  sucli  partner  separately,  upon  proving  his  joint  liability, 
notwithstanding  he  may  not  have  been  named  in  the  original  action  ;  but 
the  plaintiff  shall  have  satisfaction  of  only  one  judgment  rendered  for  the 
same  cause  of  action.    2  Lawn  of  1806,  1837,  ch.  824,  §  5. 

14.  Section  385  of  the  Code  of  Procedure, — which  authorizes  the  defendant  to 
offer  to  allow  judgment  before  verdict, — amended  by  adding:  That  in  case 
the  defendant  shall  set  up  a  counter-claim  in  his  answer   to  an  amount 
greater  than  the  plaintiff's  claim,  or  sufficient  to  reduce  the  plaintiff's  recov- 
ery below  fitly  dollars,  then  the  plaintiff  may  serve  upon  the  defendant  an 
otter  in  writing  to  allow  judgment  to  be  taken  against  him  tor  the  amount 
specified,  or  10  allow  said  counter-claim  to  the  amount  specified, -with  costs. 
If  the  defendant  accept  the  offer,  and  give  notice  thereof  in   writing  within 
ten  days,  he  may  enter  judgment  as  above  for  the   amount  specified,  if  the 
offer  entitle  him  to  judgment,  or  the  amount  specified  in  stxid  offer  shall  be 
allowed  him  in  the  trial  of  the  action.     If  the  notice  of  acceptance  be  not 
given,  the  offer  is  to  l>e  deemed  withdrawn,  and  cannot  be  given  in  evidence ; 
and  if  the  defendant  fiil  to  recover  a  more  favorable  judgment,  or  to  estab- 
lish his  counter-claim  to  a  greater  amount  than  is  specified  in  such  offer,  he 
cannot  recover  costs,  but  must  pay  the  plaintiff's 'costs  from  the  time  of  the 
offer.    2  Laws  of  1806,  1845,  ch.  824,  §  16. 

15.  Where  the  defendant,  after  service  of  an  offer  to  allow  the  plaintiff  to 
take  judgment  for  a  specified  sum,  and  within  the  ten  days  allowed  for  the 
plaintiff's  acceptance,   served  an  answer  and  counter-claim  demanding 
judgment  of  the  plaintiff  for  a  larger  sum  than  the  amount  of  the  offer, 
and  upon  the  trial  the  plaintiff  recovered  a  few  cents  less  than  the  defen- 
dant's offer  : — Held,  that  he  was  nevertheless  entitled  to  costs:  for  by  the 
extinguishment  of  the  counterclaim,  he  recovered  a  more  favorable  judg- 
moat.     Supreme  Ct.,  Tompkins  v.  Ives,  30  How.  Pr.,  13. 

15.  Judgment  may  be  rendered  against  one  defendant  alone,  in  the  marine 
court,  in  an  action  ex  delicto,  although  section  136  of  the  Code  does  not 
apply  to  the  marine  court  N.  Y.  Com.  PL,  1861,  Ballard  v.  Lockwood, 
1  Daly,  158. 


520  ABBOTTS'  PRACTICE  DIGEST. 


JUSTICES'  COURTS. 


JUSTICES'  COURTS. 

1.  The  plaintiffs  brought  an  action  before  the  justice  of  the  peace,  and  com- 
plained for  trespass  -quare  clausumfregit,  and  treading  down  and  destroy- 
ing grass  and  herbage  there  growing,  and  treading  down,  eating  up,  a/id 
destroying  corn,  oats,  wheat,  apples,  potatoes,  and  other  grain  and  vege- 
tables of  the  plaintiffs.     The  defendants  answered  by  justifying  "  the  acts 
of  entering  the  close  of  the  plaintiffs  mentioned  in  the  complaint,"  by  aver- 
ring a  right  of  way  across  the  locus  in  quo,  by  setting  up  other  defences — 
of  neglect  to  keep  proper  fences,  license,    and   making  a  general  denial 
"as  to  the  residue  of  the  a  its  complained  of. — Held,   that  the   defence  of 
justification  of  entering  the  close  went  to  the  plaintiffs'  entire  right  of  re- 
covery for  the  trespass  charged,  whatever  other  matters  of  defence  were 
stated  in  the  answer  ;  and  on  the  delivery  to  the  justice,  he  was  ousted  of 
jurisdiction  and  was  bound  to  discontinue  the  proceedings — not  only  as  to 
one,  or  some  of  the  alleged  causes  of  action,  but,  as  to  all,  inasmuch  as  a 
defence  of  title  to  real  property  was  interposed   to   all  the  trespasses 
charged  in  the  complaints.     Supreme  Ct.,  1865,  Hall  v.  Hodskins,  30  How. 
Pr.,  15. 

2.  A  justice  has  power  to  amend  a  summons  by  correcting  a  clerical  mistake 
in  respect  to  the  year  named  in  it,  which  misled  no  one,  and  which  was 
not  discovered  until  after  the  cause  was  called  and  both  the  parties  had 
appeared  and  answered  before  the  justice.    The  statutes  (2  Rev.  Stat.,424, 
225,)  give  the  power  of  amendment  to  justices'  courts  which  courts  of  re- 
cord possess.  Supreme  Ct.,  1865,  Bradbury  v.  Van  Nostrand,  45  Barb.,  194. 

3.  It  is  well  settled  that  notwithstanding  the  defendant  in  a  suit  before   a 
justice  of  the  peace,  fails  to  appear  at  the  trial,  the  plaintiff  must  establish 
his  cause  of  action  by  legal  evidence.     [29  Barb.,  523  ;  20  Id.,  278.]     Su- 
preme Ct..  1865,  Armstrong  v.  Smith,  44  Barb.,  120. 

4.  The  practice  in  regard  to  appeals  from  a  justice's  judgment  to  the  county 
court, 'introduced  by  the  act  of  1862.  amending  §  371  of  the  Code  of  Pro- 
cedure, stated.     Wynkoop  v.  Halbut,  33  Barb.,  266 . 

5.  Under  section  371  of  the  Code,  as  amended  by  the  act  of  1862,  where  the 
party  against  whom  judgment  has  been  recovered  in  a  justice's  court  ap- 
peals therefrom,    claiming,  in   his  notice   of  appeal,  that   the  judgment 
should  have  been  in  his  favor,  and  upon  the  appeal  the  respondent  recov- 
ers judgment  again,  though  for  a  less  amount,  the  appellant  it  not  entitled 
to  costs,  but  the  respondent  is.     Under  such  a  notice  the  respondent  is  not 
entitled  to  serve  an  offer  to  reduce  his  judgment,   and  therefore  is   not 
chargeable  with  costs  if  it  be  merely  reduced  upon  the  appeal.     Supreme 
Ct.,  1865,  Wynkoop  v.  Halbut,  43  Barb.,  266. 

6.  Under  the  amendment  of  1864  (Laws  of  1864,  997,  ch.  414,  §  4)  to  sec- 
tion 371  of  the  Code  of  Procedure,  providing  that  if,  in  a  notice  of  appeal 
from  a  justice's  court,  the  appellant  shall  not  state  in  what  particular  the 
judgment  should  have  be  en  more  favorable  to  him,  the  notice  must  show 
distinctly  what  the.  error  of  the  justice  really  was,  in  language  plain  and 
explicit.  A  general  statement  that  "judgment  should  not  have  been  for  a 


NEW  YORK:  18C6.  521 


JUSTICES'  COURTS. 


sum  exceeding"  a  specified  amount  is  not  sufficient.  This  does  not  point  to 
any  particular  error.  [Reviewing  25  How.  Pr.,  144;  Id.,  158;  27  Id., 
67  ;  29  Id..  232].  Supreme  Ct.,  1865,  Gray  v.  Hannah,  Ante,  43.  Sec  to 
the  contrary  Smith  v.  llinds,  '60  How.  Pr.,  187. 

7.  Under  section  371  of  the  Code  of  Procedure,  if  a  party  appealing  from'  a 
justice's  judgment  would  entitle  himso  f  to  costs,  bis  notice  of  appeal  must 
specify  in  plain  and  explicit  language  what  the  error  or  mistake    of  the 
justice  really  was.     If  the  judgment  was  a  recovery  upon  a  single  cause 
of  action  for  unliquidated  damages,  a  notice  merely  stating  that  the  judg- 
ment should  not  have  been  for  a  sum  exceeding  a  specified  smal  er  amount, 
without  pointing  out  any  element  in  the  damages  that  was  erroneous,   is 
not  sufficient  to  entitle  the  appellant  to  costs.     Supreme  Ct.,  18G6,  Gray  v. 
H  unah.  Ante,  43. 

8.  Under  seel  ion  371  of  the  Code  of  Procedure,  as  amended,  a  notice  of  ap- 
peal from  a  justice's  court,  in  order  to  charge  the  respondent  with  costs, 
must  not  merely  object  to  the  whole  judgment,  but  must  point  out  or  par- 
ticularize wherein  the  judgment  should  have  been  more  favorable.     It  ia 
not  sufficient  in  this  respect  to  state  that:  the  judgment  was  "  excessive/7 
or  that  there  was  no  evidence  to  warrant  a  judgment  for  a  sum  exceeding 
a  specified  amount ;  or,  that  there  was  error  in  allowing  a  recovery  for  a 
specified  thing,  without  saying  how  the  judgment  should  be    modified  in 
this  respect.     Supreme  Ct.,  18G6,  Loveland  v.  Attvood,  31  How.  Pr.,  467. 

9.  The  provision  of  section  371  of  the  Code, — respecting  the  notice  of  appeal 
necessary  to  entitle  the  appellant  to  co  ts, — amended,  by  requiring  that  if 
he  claims  that  the  amount  of  judgment  is  less  favorable   to  him  than  it 
should  have  been,  he  should  state  what  should  nave  been  its  amount;  and 
adding  a  proviso  that  the  appellant  shall  not  recover  costs  unless  the  judg- 
ment appealed  from  shall  be  reversed  on  such  appeal,  or  be  made  more  fa- 
vorable to  him,  to  the  amount  of  at  least  ten  doilars.    2  Laws  of  Ib6(5,  1842, 
ch.  924,  §  14. 

10.  Where  a  notice  of  appeal  from  a  justice's  judgment,  specifying  the  par- 
ticulars in  which  the  judgment  should  have  been  more  favorable  to   the 
appellant,  is  served  upon  the  respondent,  the  respondent  in  serving  his 
offer  of  acceptance,  must  not  only  serve  it  upon  the  party,  but  also  upon  the 
justice.     The  statute  has  made  the  respondent's  right  to  costs  depend  upon 
a  compliance  with  its  provisions.     Supreme  Ct.,   Gen.  1\,  Ib65,   Smith  v- 
Hinds,  30  How.  Pr.,  187. 

11.  The  court  to  which  an  appeal  is  taken  from  a  justice's  court  should  not 
dismiss  the  appeal  upon  the  objection  that  the  notice  was  not  stamped,  as 
required  by  the  United  States  Internal  Revenue  Law.     Chtnangj  Co.  Ct., 
1866,  Lewis  v.  Randall,  Ante,  135. 

12.  Where  the  appellant,  in  accordance  with  the  provisions  of  section  352  of 
the  Code,  states  in  the  .notice  of  appeal  that  such  appeal  is  taken  upon 
questions  of  law  only,  the  court  below  shall  return  to  the  appellate  court 
the  testimony,  proceedings,  and  judgment.   2  Laws  q/"18G6, 1841,  ch.  824, 
§  13,  amending  Code  of  Pro.,  §  3,60.      ^ 

13.  An  offer  by  the  respondent,  on  an  appeal  from  a  judgment  in  a  justice's 
court,  to  reduce  the  amount  of  a  recovery,  is  not  admissible  in  evidence  on 
the  trial  of  the  appeal  in  the  county  court  for  the  purpose  of  influencing  the 


522  ABBOTTS'  PKACTICE  DIGEST. 


JUSTICES'  COURTS. 


jury  to  the  prejudice  of  the  respondent's  case.     N.  Y.  Supreme  Ct.,  1865, 
Finney  v.  Veeder,  Ante,  366. 

14.  The  Code  of  Procedure  nowhere  describes  the  precise  form  of  the  under- 
taking to  be  given  upon  an  appeal  from  the  judgment  of  a  justice's  court. 
An  undertaking  which  substantiallyconforms  to  the  directions  of  section 
356  is  sufficient.     Ct.  of  Appeals,  1865,  Doolittle  v.  Dininny,  31  N.  Y.,  350. 

15.  The  pendency  of  an  appeal  from  a  decision  of  a  justice  dismissing  a  com- 
plaint against  the  objection  of  the  plaintiff,  does  not  enable  the  plaintiff, 
in  such  action,  when  sued  by  the  defendant  in  another  court  upon  a  cross 
demand,  to  set  up  that  such  cross  demand  ought  to  have  been  interposed 
as  a  set-off,  and  is  barred  by  2  Rev.  Stat.,  233,  236,  §  57,  because  it  was 
not  so  interposed.      The  erroneous  dismissal  of  a  suit  by  a  justice  of  the 
peace,  against  the  remonstrance  of  the  plaintiff,  puts  an  end  to  it,  as  effect- 
ually as  though  it  was  dismissed  on  the  plaintiffs  motion.   And  an  appeal 
from  the  judgment  of  dismissal  does  not  restore  the  action.     Supreme  Ct., 
1864,  Lord  v.  Ostrander,  43  Barb.,  337. 

16.  A  ruling  that  a  witness  was  bound  to  answer  a  question,  which  he  nev- 
ertheless refused,  and  was  not  compelled  to  answer,  is  not  a  ground  for 
reversing  a  judgment  which  appears  upon  the  merits  to  be  free  from  error. 
Assuming  the  rule  to  be  erroneous,  it  is  a  mere  speculation  to  say  that 
the  ruling  prejudiced  the  defendant  in,  the  minds  of  the  jury,  and  pro- 
duced the  verdict  against  him.  where  there  is  no  evidence   that  such  its 
effect,  in  fact.      The  presumption  is  the  other  way,  since  it  was  the  duty 
of  the  jury  to  base  their  verdict  on  the  testimony  alone.      Supreme  Ct., 
1865,^  Murphy  v.  Tripp,  44  Barb.,  189. 

17.  It  is  well  established  tnat  in  order  to  reverse  proceedings  of  a  justice 
court,  proper  objections  must  be  there  taken.      Every  reasonable  intend- 
meut  will  be  indulged  in  support  of  a  judgment  of  that  court.      Supreme 
Ct.,  1865,  Duntz  v.  Duntz,  44  Barb.,  459. 

18.  The  rule  that  questions  arising  upon  conflicting  evidence  must  be  left  to 
the  tribunal  that  hears  the  testimony,  and  sees  the  witness  upon  the  stand, 
inflexible.     Reynolds  v.  Kelly,  1  Daly,  283. 

19.  Where,  on  the  trial  of  an  action  brought  before  the  county  court,  on  ap- 
peal  from  a  justice's  court,  the  plaintiff  is  nonsuited,  he  cannot  appeal 
directly  from  the  judgment  of  nonsuit  to  the  supreme  court ;   but .  must 
first  move  in  the  county  court  for  a  new  trial ;  and  procure  the  decision 
of  that  court  upon  the  exceptions  relied  on.    Supreme  Ct.,  IV.  Dist.,  1864, 
Simmons  v.  Sherman,  4  How.  Pr.,  4.* 

20.  That  on  appeal  from  a  justice's  court,  where  material,  but  incompetent 
evidence  upon  the  issue  was  admitted,  on  the  trial,  the   county  court  will 
not  refuse  to  reverse  on  the  ground  there  was  other  evidence  sufficient  and 
competent,  to  the  same  effect.      Columbia  Co.  Ct.,  1866,  Decher  v.  Myers, 

<     31  How.  Pr.,  372. 

*  Following  the  decision  of  the  general  terra  of  the  fifth  district,  in  Carter 
t>.  "Wisuer,  27  How.  Pr.,  385,  and  disapproving  that  of  the  general  term  in  the 
sixth  district,  in  Monroe  v.  Monroe  (Id.,  208). 


NEW  YORK  :   1866.  523 


LIMITATION   OF   ACTIONS. 


21.  That  the  finding  of  a  jury  in  a  justice's  court,  on  a  question  of  fact,  will 
not  be  reviewed  on  appeal  to  the  county  court,  if  the  evidence  was  con- 
flicting. Ib. 

CERTIORARI,  10,  11:  COSTS,  6:  DISTRICT  COURT  OF  THE  CITY  or  NEW 
YORK  :  FORMER  ADJUDICATION,  2 :  MARINE  COURT. 

JUSTICE  OF  THE  PEACE. 

1.  Towns  which  touch  each  other  at  the  corners  are  "  next  adjoining  "  within 
the  meaning  of  a  statute  giving  jurisdiction  of  an  action  to  any  justice 
of  a  town  next  adjoining  the  residence  of  the  plaintiff  or  defendant 
Ct.  of  Appeals,  1863,  Holmes  v.  Carley,  31  IV.  Y.,  289. 

2.  A  justice  of  the  peace  in  making  a  return  on  appeal,  acts  ministerially, 
and  is  liable  in  damages  for  a  false  return.     Supreme  Ct.,  18G4,  MacDon- 
nell  v.  Buffum,  31  How.  Pr.,  154. 

LACHES. 

The  criterion  of  what  is  excuse  for  laches  in  practice,  which  is  applicable  to 
individuals  generally,  is  not  to  be  strictly  applied  to  the  law  officer  of  a 
municipal  corporation,  to  4he  prejudice  of  the  rights  of  the  public  whose 
officer  he  is.  In  a  clear  case  of  excusable  negligence  and  palpable  error, 
the  court  may  grant  relief  on  terms,  even  after  a  delay  which  might  bar 
the  application  of  an  ordinary  suitor.  N.  Y.  Superior  Ct.,  Sp.  T.,  1866, 
Greer  v.  Mayor,  &c.,  of  New  York,  Ante,  206. 

LEGAL  TENDER. 

1.  Under  the  Act  of  Congress  of  February  25, 1862  (12  U.  S.  Stat.  at  L.,711), 
making  the  notes  issued  by  the  United  States  "  lawful  money,  and  a  legal 
tender  in  payment  of  all  debts,  public  and  private,  within  the  United 
States;" — a  contract  for  the  payment  of  a  sum  in  gold  and  silver  dollars 
is  satisfied  by  payment  in  such  legal  tender  notes.      N.  Y.  Superior  Ct.t 
]866,  Wilson  v.  Morgan,  Ante,  174. 

2.  A  claim  for  the  payment  of  freight  is  a  debt  of  the  consignor,  within  the 
meaning  of  the  Act,  and  the  consignee  may  discharge  it  by  payment  in 
such  notes.    Ib. 

LEGATEES. 
CAUSE  OF  ACTION,  3. 

LIMITATION  OF  ACTIONS. 

1.  Under  the  Code,  the  period  limited  for  the  commencement  of  actions  upon 
a  judgment  or  decree  in  any  court,  is  twenty  years,  and  this  includes 
judgments  in  the  marine  or  justice's  courts.      Supreme  Ct.,  1865,  Conger 
v.  Vandewater,  Ante,  126. 

2.  An  action  brought  against  administrators,  upon  a  promissory  note  by  their 
intestate,  although  more  than  one  year  after  the  letters  of  administration 


524:  ABBOTTS'   PRACTICE   DIGEST. 


LIS    PENDEXS. 


arc  issued,  but  within  six  years  (excluding  in  computing  them  the  eighteen 
months  immediately  following  the  death  of  the  intestate),  after  the  note 
fell  due,  is  not  barred  by  the  statute  of  limitations.  Supreme  Ct.,  1865, 
Scovil  v.  Scovil,  45  Barb.,  517:  S.  C.,  30  How.  Pr.,  246. 

3.  A  defendant  in  a  personal  action,  who  is  resident  abroad,  cannot  avail 
himself  of  the  stature  of  limitations  of  this  State  until  he  has  returned  to, 
and  actually  been,  a  resident  of  this  State,  and  subject  to  process  of  its 
courts,  for  the  period  prescribed  by  the  statu'e.     The  lex  j "on  governs  all 
questions  arising  under  the  statutes  of  limitations  of  the  various  States  of 
this  country,     [story's  Confl.  of  L.,  $  577.]     Hence,  the  courts  cf  this 
State  cannot  give  effect  to  the  statute  of  limitations  of  another  State,  even 
in  a  case  where  both  the  plaintiff  and  defendant,  at  the  time  when  the 
right  of  action  accrued,  were,  and  ever  since  have  been,  residents  of  such 
other  State.       [20  N.  Y.,  224  ;  3  Jchns.,  262;  7  Mass.,  516;  11  Pick.,  36.] 
Supreme  Ct.,  1864,  Power  v.  Hathaway,  43  Barb.,  214. 

4.  The  time  during  which  an  injunction  prevented  the  commencement  of  an 
action  upon  a  premium  note,  deducted  (under  section  105  of  the  Code  of 
Procedure)  in  computing  the  six  years  requisite  to  bar  the  action.      Ct.  of 
Appeals,  1865,  Sands  v.  Campbell,  31  N.  Y.,  345. 

5.  When  the  statute  cf  limitations  ccmmenQes  to  run  against  the  right 
of  action,  for  contributions  from  cne  equitably  interested  in  corporate 
stock,  towards  a  payment  made  by  the  nonsuit  stockholder  upon  corpo- 
rate debts.      Stover  «.  Hack,  30  N.  Y.,  64 :  affiiming  S.  C.,  41  Barb.,  162. 

6.  Under  the  statute  of  limitations  of  this  State,  in  determining  whether  the 
action  is  barred,  the  only  question  is  whether  the   defendant  has  been 
witliin  the  State,  and  amenable  to  process  of  its  courts  for  six  years  be- 
fore the  commencement  of  the  suit.     If  so,  the  statute  is  a  complete  de- 
fence, except  in  cases  of  special  disabilities  specified  in  section  101  of  the 
Code  of  Procedure,  in  favor  of  the  plaintiffs.     Unless  the  plaintiff  labor 
under  some  one  of  the  disabilities  specified  in  that  section,  he  must  com- 
mence his  suit    within  the  time  limited  in  the  statute,  for  the   several 
causes  of  action  therein  mentioned,  wherever  he  may  chance  to  reside, 
•whether  a  citizen  of  the  United  States,  or  an  alien.     Supreme  Ct.,  1864, 
Power  v.  Hathaway,  43  Barb.,  114. 

7.  A  condition  annexed  to  a  policy  of  insurance,  that  no  suit  or   action 
against  the  insurers,  for  the  recovery  of  any  claim  upon  the  policy,  shall 
be  sustainable  in  any  court  of  law  or  chancery,  unless  commenced  within 
six  months  next  after  any  loss  or  damage  shall  have  occurred,  is  valid ; 
and  if  an  action  is  not  commenced  within  that  time,  it  will  be   barred. 
Ct.  of  Appeals.  1864,  Kipley  v.  Etna  Ins.  Co.,  30  JV.   Y.,  136;  Roach  v. 
N.  Y.  &  Erie  Ins.  Co.,  16.,  246. 

ANSWER,  6,  7. 

US    PENDENS. 
NOTICE. 


NEW  YOEK:  1866.  525 


MANDAMUS. 


•;    :  LOAN    COMMISSIONERS. 

A  notice  and  sale  of  mortgaged  premises  by  one  only  of  the  commissioners 
for  loaning  the  public  moneys,  is  a  nullity.  It  is  the  commissioners,  in 
their  corporate  capacity,  who  become,  in  case  of  default  in  payment  of  the 
loan,  seized  of  the  lands  mortgaged  to  them  ;  they  are  required  to  give 
notice  and  make  the  sale  ;  and  they  only,  under  their  seal  of  office,  can  con- 
vey to  the  purchaser.  So  held,  although  there  was  but  one  commissioner 
in  office  at  the  time.  Ct.  of  Appeals,  1864,  York  v.  Allen,  30  N.  Y.,  104. 
>? 

MALICIOUS    PROSECUTION. 

An  action  for  malicious  prosecution  will  lie  against  a  creditor  who  effected 
the  arrest  and  imprisonment  of  his  debtor  by  alleging  that  the  demand 
was  greater  in  amount  than  it  truly  was,  so  as  to  hinder  the  debtor  from 
getting  bail.  It  is  true,  that  in  order  to  sustain  an  action  for  malicious 
prosecution,  the  law  requires  that  the  proceedings  which  form  the  subject 
of  complaint  should  have  been  maliciously  instituted,  and  carried  on, 
without  any  reasonable  or  probable  cause ;  but  there  would  ordinarily 
be  but  little  difference  in  the  injury  produced  to  the  defendant,  whether 
the  unfounded  prosecution  was  carried  on  without  any  demand  whatever 
to  justify  it,  or  whether  it  was  coupled  with  a  claim  of  real  merit.  So 
far  as  that  part  of  the  prosecution  is  considered,  it  is  as  wholly  deprived 
of  reasonable  or  probable  cause,  as  it  would  be  when  made  itself  the  sole 
subject  of  the  suit.  [Phil,  on  IV.,  3d  ed.,  261;  3  Barn.  &  Cress.,  139;  5 
Barn.  &  A.,  313;  7  Eng.  Com.  Law,  177;  Queen's  Bench  Rep.,  152;  af- 
firmed on  error,  172 ;  26  Eng.  Law  &  Eq.  Rep.,  200 ;  4  Serg.  &  R.,  19;  13 
Id.,  54.]  Supreme  Ct.,  1864,  Brown  v.  Mclntyre,  43  Barb.,  344. 


MANDAMUS. 

1.  Mandamus  is  not  to  be  denie'd  merely  because  the  relator  may  have  a 
remedy  by  action  for  damages.     Supreme  Ct.,  1865,  The  People  ex'rel. 
Livingston  v.  Taylor,  Ante,  200. 

2.  A  mandamus  will  not  lie  to  compel  the  city  judge  of  the  city  of  New 
York  to  allow  a  habeas  corpus.     It  is  discretionary  with  him  to  allow  the 
writ  or  not,  in  any  case.     N.  Y.  Supreme  Ct.,  1866,  The  People  ex  rel. 
Ryan  v.  Russel,  Ante,  230. 

8.  Authorized  to  be  issued  to  enforce  transfer  of  records  to  Metropolitan 
Health  Commission.    1  Laws  of  1866,  123,  ch.  72,  §  13. 

4.  A  mandamus  will  lie  to  the  commissioner  of  jurors,  to  com^fc  him  to 
strike  off  from  the  list  of  jurors  the  name  of  a  person  who  is  entitled,  un- 
der the  statute,  to  have  his  name  stricken  off.    'Supreme  Ct.,  1865,  The 
fteople  ex  rel.  Livingston  v.  Taylor,  Ante,  200. 

5.  Where  a  board  of  supervisors  have  a  discretion  to  determine  the  proper 
amount  to  be  allowed  for  services  rendered  to  the  county,  and  have  once 
acted  and  exercised  their  discretion,  a  mandamus  will  not  lie  to  compel 


526  ABBOTTS'  PRACTICE   DIGEST. 


MARIXK   COCET. 


them  to  act  further.  Supreme  Ct.,  Sp.  T.,  1865,  People  ex  rel  Sherman  «. 
Supervisors  of  St.  Lawrence,  3C  How.  Pr.,  173. 

6.  A  mandamus  -will  lie  in  behalf  of  a  non-resident  illegally   assessed,  to 
compel  the  assessors  to  strike  the  assessment  from  the  assessment  roll. 
Supreme  Ct.,  Sp.  T.,  1865,  The  People  v.  Assessors  of  Town  of  Barton,  44 
Barb.,  148. 

7.  Where  the  facts  are  undisputed,  and  both  parties  have  been  heard,  upon 
an  order  to  show  cause  why  a  peremptory  mandamus  should  not  issue, 
there  is  no  occasion  for  an  alternative  writ,  but  the  case  is  one  for  a 
peremptory  writ  to  issue  at  once.     [4  Hill.,  20.]     Supreme  Ct.,  Sp.   T.t 
1865,  The  People  v.  Assessors  of  Town  of  Barton,  44  Baro.,  148. 

8.  In  an  action  to  try  the  title  to  an  office  in  a  municipal  corporation,  the 
supreme  court,  at  special  and  general  terms,  having  decided  in  favor  of 
one  party  ; — Held,  that  the  fiscal  officer  of  the  municipal  corporation  was 
authorized  in  paying  to  the  deputy  of  such  party  the  moneys  provided  by 
law  for  the  salary  of  such  deputy.     Supreme  Ct.,  Sp.  T.,  1865,  People  v. 
Brennan,  Ante,  184.    But  compare  People  ex  rel.  Dennis  v.  Brennan,  30 
How.  Pr.,  417. 

9.  Upon  the  court  of  last  resort  reversing  such  decision,  and  declaring  the 
adverse  party  to  be  entitled,  a  mandamus  will  not  lie  at  the  suit  of  the 
deputy  of  the  latter  to  compel  payment,  again,  of  the  salary  of  the  same 
period,  to  him,  in  the  absence  of  any  appropriation  for  the  purpose.  Ib. 

10.  A  mandamus  lies  to  compel  a  gas  company,   manufacturing  gas  under 
the  act  of  April  14, 1859  (Laws  of  1859,  700,  ch.  311,  §  6),  to  supply  gas 
to  a  relator  who  is  entitled,  under  the  statute,  to  receive  it,  and  who  offers 
to  comply  with  the  general  conditions  on  which  the  company  supplies 
others.     Supreme  Ct.,  1865,  People  v.  Manhattan  Gas  Light  Co.,  Ante, 
404. 

MUNICIPAL  CORPORATIONS,  2. 

MARINE  COURT  (OF  THE  CITY  QF  NEW  YORK). 

1.  By  appearing  and  pleading  to  the  merits,  the  defendants  waive  all  objec- 
tions to  the  form  of  summons.     [2  Hilt,,  49.]     N.  Y.  Com.  PL,  1863,  Le 
Sage  v.  Great  Western  R.  R.  Co.,  I  Daly,  306. 

2.  The  general  terms  may  be  held  by  the  justices  of  said  court,  or  by  any  two 
of  them,  in  case  of  the  sickness  or  other  inability  of  one.    2  Laws  of  1866, 
1501,  ch.  701 ;  amending  Laws  of  1853,  ch.  617,  §  5. 

3.  Judgment  may  be  rendered  against  one  defendant  alone,  in  the  marine 
court,  in  cases  embraced  by  section  136  of  the  Code,  although  that  section 
does  not  apply  to  the  marine  court.    N.  Y.  Com.  PL,  1861,  Ballard   v. 
Lockwood,  1  Daly,  158. 

4.  It  is  the  duty  of  a  judge  of  the  marine  court,  presiding  at  a  trial  by  a 
jury,  to  give  judgment  upon  the  verdict ;  and  this  judgment  he  cannot 
intermit  or  avoid  by  making  an  order  for  a  new  trial.     N.   Y.  Com.  PL, 
1865,  Williams  v.  Tradesmen's  Fire  Ins.  Co.,  1  Daly,  437.  • 

5.  The  general  term  of  the  marine  court  has  the  same  power  as  the  general 
term  of  the  supreme  court  to  correct  entries  of  its  own  judgments  and  de- 
cisions.   N.  Y.  Com.  PL,  1865,  Harper  v.  Hall,  1  Daly,  498. 


NEW  YORK :  1866.      •  527 


•BCSANIC  S    HEX. 


6.  There  is  no  provision  of  law  allowing  a  single  judge  of  the  marine  court 
to  hear  a  motion  for  a  new  trial,  or  providing  for  an  appeal  in  that  court 
from  an  order  either  granting  or  denying  such  a  motion.    N.  Y,  Com.  PL, 
1865,  Williams  v.  Tradesmen's  Fire  Ins.  Co.,  1  Daly,  437. 

7.  On  a  motion  before  the  general  term  of  the  marine  court  to  dismiss  an 
appeal  thereto,  for  want  of  prosecution,  an  order  was  erroneously  entered 
affirming  the  judgment  appealed  from. — Held,  that  the  general  term  might 
en  motion,  correct  such  order,  so  as  to  make  it  conform  to  the  real  deci- 
sion of  the  court.    N.  Y.  Com.  PL,  1865,  Harper  v.  Hall,  1  Daly,  498. 

8.  The  act  of  1853  (chap.  617,  $  5), — directing  the  mode  of  appeal  to  the 
general  term  of  the  marine  court, — makes  sections  348  and  335  of  the 
Code  of  Procedure  applicable  to  appeals  in  that  court.     Ct.  of  Appeals, 
1865,  Kobert  v.  Donnell,  Ante,  4. 

9.  An  order  of  the  general  term  of  the  marine  court,  dismissing  an  appeal 
thereto  for  want  of  prosecution,  is  not  a  final  determination,  from  which 
an  appeal  can  be  taken  to  the  common  pleas..    N.  Y.  Com.  PI.,  1865,  Har- 
per v.  Hall,  1  Daly,  498. 

10.  The  reversal  of  a  judgment  upon  the  ground  that  it  is  against  the  weight 
of  evidence,  and  an  order  for  a  new  trial  by  the  general  term  of  the 
marine  court,  constitute  a  final  determination,  from  which  an  appeal  may 
be  taken  to  the  common  pleas.     INT.  Y.  Com.  PI,  1865,  Williams  v.  Trades- 
men's Fire  Ins.  Co.,  1  Daly,  437.  . 

11.  The  court  of  common  pleas  may,  at  special  term,  dismiss  an  appeal  from 
the  general  term  of  the  marine  court  for  irregularity.    But  if  the  pro- 
ceedings are  regular,  the  appeal  must  be  heard  at  the  general  term,  even 
upon  a   question  of  jurisdiction.     N.    Y.  Com.  PL,  1863,   Williams  v. 
Tradesmen's  Fire  Ins.  Co.,  1  Daly,  322. 

12.  The  appellate  court  will  permit  an  amendment  by  which,  an  appeal  from 
the  marine   court  may  be  perfected,  when  notice  of  appeal  has  been 
served.    N.  Y.  Com.  PL,  1863,  Williams  v.  Tradesmen's  Fire  Ins.  Co.,  1 
Daly,  322. 

APPEAL,  44 :  JUDGMENT,  15 :  VERIFICATION,  2. 

MARRIED  WOMEN. 
PARTIES,  3,  4. 

MECHANIC'S  LIEN. 

1.  Where  a  sub-contractor  is  prevented  from  performing  the  whole  of  his 
contract  with  the  contractor  by  reason  of  the  insolvency  of  the  latter,  and 
an  assignment  by  him  of  the  contract,  for  the  benefit  of  his  creditors,  he 
may  acquire  and  enforce  a  lien  for  the  value  of  his  labor  and  materials  per- 
formed and  furnished  up  to  the  time  when  he  was  prevented.      [1  E.  D. 
Smith,  213 ;  4  Id.,  729.]      N.  Y.  Com.  PI.,  1863,  Henderson  v.  Sturgis,  1 
Daly,  336. 

2,  Thus  where  although  at  the  time  the  snb-contractor  filed  his  lien  in  such 
a  case,  there  was  nothing  due  to  the  contractor,  yet  the  latter  having 


523  ABBOTTS'  PRACTICE  DIGEST. 


MECHANIC  S   LIES. 


made  an  assignment  with  the  consent  of  the  owner,  who  detained  front  the 
contract  price  the  amount  of  the  lien,  and  the  sub-contractor  having,  under 
an  agreement  with  the  assignee,  'completed  his  work  as  contemplated  by 
the  original  contract; — Held,  that  the  equities  were  with  the  sub-con- 
tractor, and  the  court  should  apply  the  siyn  so  detained  in  satisfaction  of 
his  lien.  Ib. 

3.  But  it  is  otherwise  where,  prior  to  the  filing  of  a  notice  claiming  a  me- 
chanic's lien  by  a  sub-contractor,  the  contractor,  in  good  faith  and  for  a 
full  consideration,  transfers  to  a  purchaser  the  right  that  he  might  there- 
after acquire  to  any  payments  under  the  contract.   In  such  a  case,  the  pur- 
chaser succeeds  to  the  rights  of  the  contractor  upon  the  contract,  and 
as  against  such  purchaser,  the  sub-contractor,  who  knew,  at  the  time  of 
making  his  contract,  of  the  existence  of  the  assignment,  acquires  no  lien. 
N.  "T.  Com.  PL,  1863,  Cakes  v.  Haley,  1  Daly,  338. 

4.  Where  the  notice  of  lien  under  the  mechanic's  lien  law  stated  that  the 
materials  were  furnished  in  pursuance  of  a  written  contract; — Held,  that 
extra  materials  which  became  necessary  in  consequence  of  defects  in  the 
specifications  of  the  written  contract,  were  covered  by  the  notice.      N.  Y. 
Com.  PI,  1859,  McAuley  v.  Mildrum,  1  Daly,  396. 

5.  Where  the  legal  title  to  land  is  in  one  of  two  persons  who  has  verbally 
agreed  to  divide  it  with  another,  and1  they  take  separate  possession  of 
their  respective  portions,  and  the  latter  contracts  with  a  mechanic  to  erect 
a  dwelling  house  on  his  part,  which  is  built  accordingly,  the  interest  of 
the  party  so  contracting  is  of  such  a  nature  as  to  make  it  the  subject  of  a 
lien  under  the  mechanic's  lien  law,  although  the  title  to  the  whole  lot  is 
in  the  co-tenant.     In  such  a  case  it  is  proper  to  apply  the  rule  thataparol 
partition  between  tenants  in  common,  accompanied  by'actual  possession  in 
accordance  therewith,  will  bind  the  parties  and  those  claiming  through  or 
from  them ;  and  the  co-tenant,  who  is  not  a  party  to  the  contract  with  the 
mechanic,  and  who  has  no  interest  in  the  work  done,  is  not  liable  under 
the  contract ;  nor  is  his  share  of  the  property  subject  to  the  builder's  lien. 
Supreme  Ct.,  1865,  Otis  v.  Cusack,  43  Barb.,  546. 

fi.  The  lien  to  be' obtained  under  Laws  of  1863,  859,  ch.  500,  which  secures 
the  payment  of  "  mechanics,  laborers,  and  all  persons  furnishing  materials 
towards  the  erection,  altering  or  repairing  of  buildings  in  the  city  of  New 
York," — restricted  to  the  extent  of  all  the  right,  title  and  interest  which  the 
owner  shall  have  therein  at  the  time  of  filing  the  notice  of  lien  required  by 
the  sixth  section  of  said  act.  Laws  of  1863,  1034,  ch.  752. 

7.  In  an  action  brought  by  a  sub-contractor  to  enforce  a  lien  claimed  to  have 
been  acquired  under  the  mechanic's  lien  law  of  1851,  it  must  appear  by 
the  complaint,  1.  That  labor  and  materials  have  been  furnished  in  the 
erection  of  the  building,  in  conformity  with  the  contract  made  by  the 
original  contractor  with  the  owner.  2.  That  within  six  months  thereafter. 
a  notice  in  writing,  under  section  6  of  the  act,  claiming  a  lien  for  work  or 
materials  thus  furnished,  has  been  filed  with  the  county  clerk.  3.  That 
at  or  since  the  time  of  filing  the  notice  of  lien,  a  payment  was  or  is  due 
from  the  owner  to  the  contractor  upon  the  .original  contract.  4.  That  the 
contracting  owner  had  some  interest  in  the  property  at  the  time  the  notice 
claiming  the  relief  was  filed.  [4  E.  D.  Smith,  719;  Id.,  721;  Id.,  729; 


NEW  YOKE:   1866.  629 


MOIITOAOB. 


Id.,  760 ;  3  Id.,  632 ;  Id.,  650 ;  Id.,  662 ;  2  Id.,  616 ;  Id.,  689 ;  Id.,  556  ;  I  Id., 
625  •  Id.,  681.]     N.  F.  Com.  PL,  1859,  Bailey  v.  Johnson,  1  Daly,  61. 

8.  The  mechanic's  lien  law  of  1864,  for  Onondaga  county,  amended  by  adding 
at  the  end  of  section  2  the  following  words :  "  When  such  labor  or  material 
is  performed  or  furnished  to  a  contractor  or  sub-contractor,  all  payments 
made  by  the  owner  to  either,  in  good  faith,  to  apply  on  his  contract,  shall 
operate  to  extinguish  the  lien  aforesaid,  unless  written  notice  of  the  lien  is 
served  on  the  owner  of  the  premises  before  such  payment,  stating  that  the 
same  is  then,  or  immed lately  thereafter  will  be  claimed.     When  the  owner 
is  compelled  to  discharge  liens  under  this  act,  he  shall  have  the  right  to  de- 
duct the  amount  of  the  same  from  the  contract  price  of  the  contractor  or 
sub-contractor,  for  whom  the  labor  was  performed  or  material  furnished. 
2  Laws  of  1866,  ch.  788,  §  1. 

9.  Where,  under  a  single  contract,  the  lienor  had  furnished  materials  to  the 
owner,  equally  for  seven  houses,  and  one  of  such  houses  had  been  con- 
veyed away  by  the  owner  before  the  filing  of  the  notice  of  lien; — Held, 
that  the  lien  was  valid  as  a  lien  upon  the  remaining  six  houses,  only  for 
their  proportionate  part  of  the  whole  claim  (six-sevenths),  although  dome 
payments  had  been  made  by  the  owner  on  general  account.      [4  E.  D. 
Smith,  734.]     N.  Y.  Com.  PI,  1859,  McAuley  v.  Mildrum,  1  Daly,  396. 

COSTS,  15. 

MILITARY  LAW. 
COURTS-MARTIAL. 

MISTAKE. 

Under  an  agreement  to  secure  a  debt  by  mortgage,  with  notes  which  both 
parties  understood  were  intended  to  bear  interest-,  the  debtor  intention- 
ally omitted  the  words  "  with  interest,"  from  the  later  notes,  and  the 
creditor,  looking  only  at  the  earlier,  accepted  all  the  notes  without  notic- 
ing the  omission;— Held,  that  the  creditor  was  entitled  to  relief  in  equity 
against  this  mistake.  The  rule  of  equity  that  relief  is  to  be  confined  to 
cases  of  mutual  mistake,  is  not  to  be  understood  as  requiring  i  t  to  be 
shown  that  both  parties  were  ignorant  of  the  error.  Supreme  Ct.,  1866, 
Botsford  v.  McLean,*  45  Barb.,  478. 

MORTGAGE. 

1.  A  mortgage  is  a  mere  security  for  a  debt ;  and  there  is  no  such  relation 
of  trust  or  confidence  between  the  maker  and  holder  of  a  mortgage  as  pre- 
vents the  latter  from  acquiring  title  to  its  subject-matter,  either  under  his 
own,  or  any  other  valid  lien.  The  mortgagee  has  no  duty  to  perform  to 
the  mortgagor,  or  toward  the  mortgaged  premises,  that  precludes  him  from 
buying  the  premises  at  a  tax  sale.  He  may  pay  the  taxes  or  not,  as  he 
chooses,  or  stand  upon  his  general  rights,  and  purchase  at  the  tax  sale,  as 
others  could  do,  for  the  purposes  of  investment  or  protection.  Ct.  of  Ap- 
peals, 1865,  Williams  v.  Townsend,  31  N.  Y.,  411. 

*  Compare  a  -previous  decision  in  S.  C.,  42  Id.,  445,  in  which  it  was  Held, 
that  the  evidence  was  not  sufficient  to  sustain  judgment  for  the  relief  sought. 


530  ABBOTTS'  PEACTICE  DIGEST. 


MOTIONS   AND   OUDEBS. 


fc) 


2.  A  mortgagee  who  desires  to  pay  off  taxes  or  assessments,  and  charge  them 
on  the  mortgaged  premises,  has  a  very  plain  course  to  pursue.  At  any 
stage  of  the  proceedings  he  can  step  forward  in  his  character  of  mortgagee 
and  pay  the  assessment,  or  redeem  from  a  sale  before  the  purchaser's  title 
has  actually  ripened,  by  a  conveyance  under  the  law.  It  is  no  hardship 
to  require  him  to  do  this  in  a  plain  and  distinct  manner,  so  as  not  to  em- 
barrass the  title  of  the  mortgagor  or  owner.  When,  however,  he  purchases 
at  a  tax-sale,  and  takes  a  certificate  as  purchaser,  that  is  an  election  on  his 
part  to  occupy  the  relation  of  purchaser,  with  all  the  rights  and  incidents 
which  the  law  attaches  to  it.  He  becomes  then  the  owner  of  an  undis- 
charged lien,  which  the  owner  of  the  land  may  discharge  in  the  manner 
provided  by  law.  16. 

MOTIONS    AND    ORDERS. 

1.  An  application  to  the  favor  of  the  court  should  not  be  denied  on  the 
ground  that  the  moving  party  is  in  contempt  of  another  court.      N.    Y. 
Superior  Ct.,  Sp.  T.,  1866,  Strong  v.  Strong,  Ante,  358. 

2.  It  is  not  generally  essential  that  the  defendant,  in  moving  to  compel  the 
plaintiff  to  reply  to  an  answer  of  the  statute  of  limitations,  should  state 
that  he  does  not  know  the  ground  on  which  the  plaintiff  intends  to  rely 
to  defeat  the  bar  of  the  statute.     Supreme  Ct.,  Sp.  T.,  1865,  Hubbell  v. 
Fowler,  Ante,  1. 

3.  That  an  order  is  the  only  mode  of  judicially  determining  a  motion.     A 
mere  oral  decision  is  of  no  avail  without  an  order  making  it  a  record  ;  nor 
should  the  court  rely  on  affidavits  of  parties  as'to  what  a  court  has  decided  ; 
even  counsel  being    sometimes   mistaken.     N.   Y.  Superior  Ct.,  1864, 
Smith  v.  Spalding,  30  How.  Pr.,  339. 

4.  The  objection  that  the  assessors  have  assessed  property  for   a  local  im- 
provement in  the  city  of  New  York  more  than  is  allowed  by  law,  may  be 
raised  for  the  first  time  before  the  supreme  court  on  a  motion  to  vacate 
the  assessment.     Supreme  Ct ,  Sp.  T.,  1865,  Palmer's  Petition,  Ante,  30. 

5.  Defendants  not  entitled  to  a  bill  of  particulars  in  an  action  for  damages 
for  the  breach  of  a  special  contract  for  services.  Supreme  Ct.,  Sp.  T.,  1865, 
Ives  v.  McCredy,  31  How.  Pr.,  54. 

6.  Motion  to  discharge  an  order  of  arrest  denied,  on  the  ground  that  the 
moving  affidavit  of  the  defendant  was  sufficiently  contradicted  by  that  of  a 
disinterested  witness  for  the  plaintiffs.    Butler  v.  Mcllvaine,  31  How.  Pr.t 
379. 

Consult  also  ARREST. 

7.  An  application  to  be  relieved  from  payment  of  alimony,  if  made  after  im- 
prisonment under  attachment  for  non-payment,  should  be  made  under 
2  Rev.  Stat.,  538,  §  20.     N.  Y.  Superior  Ct.,  Sp.  T.,  1866,  Graley  v.  Gra- 
ley,  31  How.  Pr.,  475. 

APPEAL,  42 :  CONFESSION  OF  JUDGMENT,  10 :  PLEADING,  35-35. 


NEW  YORK:   186G.  531 


NEW    TRIAL. 


MUNICIPAL    CORPORATIONS. 

1.  Under  a  statute  (Laics  of  1865,  ch.  180),  making  it  the  duty  of  a  muni- 
cipal corporation  to  create  a  stock  or  fund  to  an  amount,  and  upon  terms 
of  payment,  fixed  in  the  statute,  and  requiring  the  comptroller  of  the  cor- 
poration to  prepare  and  issue  the  stock,  and  sell  the  same, — the  corporation 
have  a  duty  to  perform  in  creating  the  stock  by  ordinance,  before  the 
comptroller  can  issue  it.     Supreme  Ct.,  1866,   The  People  ex  rel.   The 
Market  Commissioners  v.  The  Common  Council,  Ante,  318. 

2.  A  mandamus  to  compel  the  corporation  to  create  th«  stock,  is  properly 
addressed  to  the  common  council,  although  the  corporation  are  designated 
in  the  statute  as  the  Mayor,  Aldermen,  and  Commonalty  of  the  city.    Ib. 

CAUSE  OF  ACTION,  4 :  POWERS. 


NEGLIGENCE. 

One  who  reserves  a  right  of  possession  and  use  in  a  pier,  though  he  has  parted 
with  the  title,  is  still  liable  for  injuries  caused  by  its  bad  condition.  N.Y. 
Com.  PL,  1865,  Cannavan  v.  Conklin,  Ante,  271. 

NEW     TRIAL. 

1.  The  Code  of  Procedure  has  not  taken  away  from  the  mayor's  court  of  the 
city  of  Albany  the  power  to  grant  new  trials,  or  to  set  aside  a  judgment 
on  the  merits  entered  on  the  report  of  a  referee.     Supreme  Ct.,  1864,  Peo- 
ple v.  Austin,  43  Barb.,  313. 

2.  The  county  court  has  authority,  by  section  30,  subd.  13,  of  the  Code,  to 
review  its  proceedings  in  an  action  after  judgment,  and  to  grant  a  new 
trial,  &c.,  notwithstanding  the  general  language  of  section  323  of  the  Code, 
providing  that  the  only  mode  of  reviewing  the  judgment  or  order,  in  a 
civil  action,  shall  be  by  appeal.     Otscgo  Co.  Ct.,  1865,  Ilall  v.  Hall,  30  How. 
Pr.,  51. 

3.  Although  a  new  trial  will  not  be  granted  on  evidence  merely  contradicting 
the  testimony  on  which  the  verdict  proceeded,  discovered  subsequent  to 
the  trial,  yet  where  the  facts,  on  which  the  witnesses  for  the  prevailing 
parties  founded  themselves,  are  falsified  by  the  affidavits  produced  on  the 
motion,  it  affords  a  sufficient  ground  for  ordering  a  new  trial.  [1  Bos.  &  P., 
429.]     N.  Y.  Com.  PL,  1860,  Wehrkamp  v.  Willet,  1  Daly,  4. 

4.  In  an  action  by  a  married  woman  against  the  sheriff  for  taking  certain 
personal  property,  claimed  by  her  to  be  her  separate  estate,  upon  a  judg- 
ment and  execution  against  her  husband, — Held,  that  her  testimony  on 
the  trial  tending  to  show  her  ability  to  purchase  the  property  claimed, 
with  moneys  of  her  own,  and  independent  of  her  husband,  was  material  to 
the  issue  ;  and  clear  proof  by  affidavit,  on  a  motion  for  a  new  trial,  that 
her  testimony  on  that  point  was  false,  was  sufficient  ground  for  granting  a 
new  trial.    16. 


532  ABBOTTS'  PEACTICE  DIGEST. 


NEW   TRIAL. 


5  If  it  be  shown  by  the  affidavits  of  jurors  that  the  officer  having  them  in 
charge  made  statements  calculated  to  influence  the  jury  to  render  the  ver- 
dict, it  is  sufficient  for  granting  a  new  trial.  It  is  not  necessary  to  show 
that  the  verdict  was  in  fact  influenced  by  the  statements  of  the  officer.  It 
is  enough  to  show  that  there  is  reason  to  suspect  that  the  statements 
were  made,  and  if  made,  that  they  were  likely,  or  calculated  to  influence 
the  verdict,  f  1  Hill.,  211 ;  17  Mass.  R.,  318 ;  3  Brod.  &  Bing.,  257  ;  C.  L. 
Rep ,  433.]  Supreme  Ct.,  Sp.  T.,  1805,  Thomas  v.  Chapman,  45  Barb.,  98. 

6.  Although  affidavits  of  jurors  will  not  be  received  to  show  their  own  mis- 
conduct, or  the  misconduct  of  their  fellows  1 5  Hill,  650],  there  is  no  doubt 
that  they  are  admissible  to  show  the  misconduct  of  a  party,  or  of  the  offi- 
cer having  charge  of  them.     [9  How.  Pr.,  7.]     Supreme  Ct.,  Sp.  T.,  1865, 
Thomas  v.  Chapman,  45  Barb.,  98. 

7.  Where,  in  an  action  upon  a  promissory  note,  the  defence  was  payment, 
and  the  defendant,  being  examined  as  a  witness,  testified  positively  to  the 
payment  of  the  note,  and  to  the  particular  time,  manner  and  place  of  pay- 
ment, and  the  person  to  whom  made ;  and  the  plaintiff,  who  was  a  banker, 
on  a  motion  for  a  new  trial,  swore  that  this  testimony  took  him  by  sur- 
prise ;  that  he  did  not  previously  know  how,  when  or  where,  it  was  claimed 
that  the  note  was  paid  :  and  it  appearing  that  to  meet  and  explain  such 
evidence  by  countervailing  testimony,  at  the  trial,  required  time  to  in- 
spect entries  and  examine  dates,  &c. ;  and  that  since  the  trial  it  had  been 
discovered  that  three  witnesses  would  contradict  the  defendant's  testimony, 
as  to  the  fact  of  payment,  on  the  day  and  at  the  place  mentioned  by  him, 
and  would  testify  to  their  presence,  and  to  what  did  take  place  then  and 
there ; — Held,  that  this  was  a  proper  case  for  granting  a  new  trial  on  the 
grounds  of  surprise  and  newly  discovered  evidence.      So  far  as  defendant 
was  concerned,  it  was  a  single  transaction,  and  likely  to  be  remembered 
if  true,  while  in  respect  to  plaintiff  it  was  one  of  numerous  business  trans- 
actions, not  likely  to  be  remembered  by  himself  or  his  clerk.      Supreme 
Ct.,  1864,  Parshall  v.  Klinck,  43  Barb.,  203. 

8.  In  an  action  against  the  drawer  of  a  bank  check,  the  defence  being  that  it 
was  given  for  the  benefit  of  a  third  person,  on  an  agreement  that  it  was 
to  be  paid  only  out  of  funds  to  be  provided  by  him,  the  plaintiff  testified 
that  before  he  took  the  check  the  defendant  told  him  that  he  had  security, 
and  would  pay  the  check,  and  that  he  (plaintiff)  took  it  for  value.      The 
defendant  testified  that  he  never  had  any  conversation  with  plaintiff  be- 
fore the  latter  received  the  check.    After  verdict  for  the  plaintiff; — Held, 
that  newly  discovered  evidence  of  declarations  of  the  plaintiff  that  he  knew 
before  he  took  the  check  that  it  was  made  on  the  condition  alleged  by  the 
defendant,  was  a  good  ground  for  granting  a  new  trial.      N.  Y.  Superior 
Ct.,  1863,  Oakley  v.  Sears,  Ante,  368. 

9.  The  circumstance  that  proof  of  such  facts  would  tend  to  discredit  the 
plaintiff,  does  not  convert  the  evidence  into  mere  impeaching  evidence.  Ib. 

10.  Nor  is  such  evidence  to  be  deemed  cumulative,  but  is  direct  and  indepen- 
dent testimony.     16. 

J.1.  An  application  for  a  new  trial  upon  newly  discovered  evidence  denied, 
where  the  evidence  was  cumulative,  was  the  mere  opinion  of  a  witness, 


NEW  YOEK:   1866.  533 


and  went  to  impeach  or  to  contradict  the  testimony  of  the  prosecutor.    Wil- 
liams v.  People,  45  Barb.,  201. 

12.  Evidence  proposed  to  be  given  to  prove  new  facts  not  proved  on  the 
former  trial,  is  not  therefore  subject  to  the  objection  that  it  is  cumulative. 
Supreme  Ct.,  1864,  Parshall  v.  Klinck,  43  Barb.,  203. 

13.  The  statute  as  to  the  mode  in  which  jurors  are  to  be  drawn  is  directory ; 
and  a  neglect  to  conform  to  its  provisions  is  not,  in  itself,  a  sufficient  ground 
for  setting  aside  a  verdict  where  the  prisoner  has  not  been  prejudiced. 
Supreme  Ct.,  1865,  People  v.  Ferris,  Ante,  193. 

14.  A  new  trial  is  not  to  be  granted  to  the  defendants  after  a  verdict  against 
them  for  an  amount  less  than  that  claimed  by  the  plaintiff,  on  the  ground 
that  its  being  for  less  than  the  full  amount  claimed,  indicates  that  the  jury 
should  have  found  for  the  defendants,  if,  upon  the  same  evidence,  a  verdict 
for  the  full  amount  would  not  have  been  set  aside.      Even  if  the  verdict 
was  the  result  of  a  compromise  of  opinions  on  the  part  of  the  jurors ; 
some  being  of  opinion  that  the  defence  was  established,  and  others  that  it 
was  not,  and  the  verdict  is  not  what  either  of  them  alone  would  have  ren- 
dered, and  is  not,  in  amount,  the  logical  result  of  a.ny  possible  findings,  it 
is  not,  for  that  reason,  to  be  set  aside.      Supreme  Ct.,  1864,  Wolf  v.  Good 
hue  Fire  Insurance  Company,  43  Barb.,  400. 

15.  The  rule  that  the  court  will  not  grant  a  new  trial  when  the  plaintiff  is 
only  entitled  to  recover  nominal  damages,  does  not  apply  in  cases  where 
the  jury  would  not  have  been  limited  to  mere  nominal  damages,  and 
if  they  had  given  damages  for  an  amount  sufficient  to  entitle  the  plaintiff 
to  recover  full  costs,  or  a  larger  amount,  within  reasonable  limits,  tho 
courts  would  not  have  set  aside  the  verdict.     Supreme  Ct.,  1865,  Mclntyre 
tu  New  York  Central  Railroad  Company,  43  Barb.,  532. 

16.  A  verdict  assessed  upon  a  plainly  erroneous  method  of  computation  of  the 
value  of  a  life  estate  may  be  set  aside  on  the  ground  of  mistake,  inadvert- 
ence, or  excusable  neglect,  even  after  a  motion  for  a  new  trial  has  been 
denied,  and  judgment  has  been  entered.     N.  Y.  Superior  Ct.,  Sp.  T.,  1866^ 
Greer  v.  The  Mayor,  &c.,  of  New  York,  Ante,  2U6. 

17.  Of  the  terms  on  which  new  trials  should  be  granted  in  cases  of  newly 
discovered  evidence.    Parshall  v.  Klinck,  43  Barb.,  203. 

APPEAL,  20,  22:  DISTRICT  COURT  OF  NEW  YORK,  5 :  JUSTICES'  COURTS,  19 : 
MARINE  COURT,  4,  6 :  TRIAL. 

NEW  YORK,  (CITY  OF.) 

1.  The  proviso  in  the  act  of  April  3,  1807, — by  which  it  is  declared  that  the 
proprietors  of  lands  adjacent  shall  have  the  pre-emptive  right  in  all  grants 
made  by  the  corporation  of  the  city  of  New  York,  of  the  lands  under  water 
in  the  Hudson  river  granted  to  the  city  by  tl:at  Act, — is  a  mere  restraint 
on  alienation,  which  can  be  waived  by  the  original  grantors,  the  State ; 
and  does  not  confer  any  legal  right  to,  or  interest  in,  such  lands  under 
water,  upon  the  proprietors  of  the  adjacent  uplands.     N.  Y.  Superior  Ct., 
1803,  Towle  v.  Palmer,  Ante,  81. 

2.  Speciiil  proceedings  in  reference  to  unsafe  buildings.    2  Laws  of  1866,  2033, 
ch.  873,  §  40. 


534:  ABBOTTS'  PEACTICE  DIGEST. 


3.  A  proceeding  commenced  before  a  judge  under  the  Act  of  1858,  authoriz- 
ing assessments  to  be  set  aside,  cannot  be  transferred  by  the  judge  into 
court ;  and  orders  of  court  made  in  such  proceeding,  are  -without  jurisdic- 
tion, and  void.     Supreme  Ct.,  1865,  People  v.  Bowman,  45  Barb.,  344. 

4.  An  assessment  for  the  expenses  of  a  local  improvement  in  the  city  of 
New  York  will  not  be  set  aside  as  fraudulent  or  irregular,  merely  because 
made  before  the  work  has  been  done.      In  such  case,  an  estimate  of  the 
expenses  being  necessary,  the  assessors  are  authorized  to  make  it,  though 
not  specially  directed  to  do  so  in  the  ordinance.     [2  Sandf.,  342 ;  8  N.  Y., 
120.]      Supreme  Ct.,  1896,  Beekman's  Petition,  Ante,  449;  overruling  in 
effect,  a  previous  decision  on  this  point  in  19  Abb,  Pr.,  245. 

5.  The  city  judge  of  the  city  of  New  York  has  power  to  allow  a  habeas 
corpus,  but  it  is  discretionary  with  him  to  allow  the  writ  or  not,  in  any 
case ;  and  a  mandamus  will  not  lie  to  compel  him  to  allow  it.     Supreme 
Ct.,  1866,  People  v.  Russell,  Ante,  230. 

CAUSE  OF  ACTION,  19:  COMPLAINT,  4:  COURTS,  3:  COURTS  OF  SPECIAL 
SESSIONS:  DISMISSAL  OF  COMPLAINT,  3:  MOTIONS  AND  ORDERS,  4: 
POWERS. 

NONSUIT. 

In  an  action  by  the  personal  representatives  to  recover  damages  upon  the 
death  of  the  decedent,  resulting  from  the  act  or  neglect  of  the  defendant, 
it  is  error  to  nonsuit  the  plaintiff  on  the  ground  that  special  proof  of  pe- 
cuniary loss  is  not  given  [14  N.  Y.,  310 ;  15  Id.,  434J ;  and  the  nonsuit  will 
be  set  aside  if  the  evidence  is  such  that  a  recovery  for  anything  more  than 
nominal  damages  would  not  be  set  aside.  Supreme  Ct.,  1865,  Mclntyre  v. 
New  York  Central  Railroad  Company,  43  Barb.,  532. 
PARTIES,  21. 

NOTICE. 

1.  The  published  notice  of  an  order  to  creditors  to  show  cause,  stating  that 
the  proceeding  is  for  the  discharge  of  an  insolvent  from  his  debts,  need 
not  specify  the  particular  statute  under  which  it  is  had ;  and  adding  a  de- 
fective reference  to  the  statute  does  not  vitiate.  N.  Y.  Superior  Ct.,  1863, 
Soule  v.  Chase,  Ante,  48. 

2.  The  proof  of  publication  of  such  notice  is  not  limited  by  the  statute,  to 
an  affidavit  of  the  printer  or  the  clerk  or  foreman  of  the  printer,  although 
it  enables  the  insolvent  to  perpetuate  the  evidence  by  taking  their  affida- 
vit.    16. 

3.  Certificate  of  the  service  of  a  notice  of  protest  stating  that  the  notice  ad- 
dressed to  the  indorser  was  left  at  his  desk  in  the  New  York-  Custom 
House,  he  being  absent  therefrom,  with  a  person  in.  charge,  is  presump- 
tively sufficient,  in  the  absence  of  any  proof  to  the  contrary  ;  and  it  seems, 
that  such  service  would  be  sufficient  as  having  been  made  at  the  indorsees 
place  of  business.     Supreme  Ct.,  1866,  Bank  of  the  Commonwealth  v. 
Mudgett,  45  Barb.,  653. 

4.  Notice  of  unsafe  buildings  in  city  of  New  York,  may  be  filed  so  as  to 
create  a  lien,  as  a  lis  pendens.    2  Laws  of  1866,  2030,  ch."  873,  §  36. 


NEW  YOEK :  1866.  535 


NCISANCBS. 


5.  A  statute  which  requires  notice  to  be  given  by  a  board  of  commissioners, 
is  not  fulfilled  by  a  notice  given  by  the  president  of  the  board  in  his  own 
name.  So  held,  where  it  appeared  that  while  the  board  verbally  ordered  a 
notice  to  be  given  by  the  president,  they  did  not  verbally  or    otherwise 
prescribe  the  form  of  notice.  Ct.  of  Appeals,  1864,  Commissioners  of  Pilots 
v.  Vanderbilt.  31  N,Y.,  265. 

6.  Proof  that  a  notice  •was  "  published  in  the  New  York  Day  Book"  is  suffi- 
cient to  show  compliance  with  an  order  that  it  be  published  in  '•  the  news 
paper  published  in  the  city  of  New  York,   entitled  '  the  Evening  Day 
Book,'  "  in  the  absence  of  any  evidence  of  the  existence  of  two  papers 
•with  the  title  oi  Day  Book.    N.  Y.  Superior  Ct.,  1863,  Soule  v.  Chase, 
Ante,  48. 

7.  The  provision  of  section  132  of  the  Code  of  Procedure, — whicJ.  allows  a 
notice  of  pendency  of  action  to  be  filed  in  actions  affecting  real  property, 
or  where  attachments  are  issued, — amended  by  allowing  also  a  defendant, 
when  he  sets  up  an  affirmative  cause  of  action  in  his  answer,  and  demands 
substantive  relief,  at  the  time  of  filing  his  answer,  or  at  any  time  afterwards, 
to  file  a  similar  notice.    2  Laws  0/1866, 1836,  ch.  824,  §  4. 

8.  The  last  clause  of  the  same  section,  relative  to  .cancelling  the  notice, 
amended  to  read  as  follows :  And  the  court  in  which  the  said  action  "  was 
commenced,  may,  in  its  discretion,  at  any  time  after  the  action  shall  be 
settled,  discontinued  or  abated,  as  is  provided  in  section  number  one  hundred 
and  twenty-one,  on  application  of  any  person  aggrieved,  and  on  good  cause 
shown,  and  on  such  notice  as  shall  be  directed  or  approved  by  the  court, 
order  the  notice  authorized  by  this  section  to  be  cancelled  of  record  by  the 
clerk  of  any  county  in  whose  office  the  same  may  have  been  filed  or  re- 
corded ;  and  such  cancellation  shall  be  made  by  an  indorsement  to  that 
effect  on  the  margin  of  the  record,  which  shall  refer  to  the  order,  and  for 
which  the  clerk  shall  be  entitled  to  a  fee  of  twenty-five  cents.*    2  Laws  of 
1866, 1837,  ch.  824,  §  4. 

APPEAL,  1,  2,  43  :  LOAN  COMMISSIONERS  :  MECHANICS'  LIEN,  4 :  TRIAL,  1,  2. 

OFFER    TO    ALLOW    JUDGMENT. 

What  constitutes  a  "more  favorable  judgment"  than  the  one  offered. 
Turner  v.  Ilensinger,  31  How.  Pr.,  66 ;  Reed  v.  Moore,  31  How.  Pr.,  264. 

COSTS,  4,  5 :  JUDGMENT,  13, 14. 

NUISANCES. 

Stalls  annexed  to  the  markets  in  the  city  of  New  York,  are  not  so  clearly 
public  nuisances,  that  the  board  of  health  may  remove  them ;  and  the 
court  may  forbid  their  doing  so  by  injunction.  The  rule  that  an  injunc- 
tion cannot  be  allowed  where  there  is  a  remedy  in  damages,  is  not  applic- 
able where  the  loss  in  any  event  must  fall  on  the  public  treasury.  Su- 
preme Ct.,  Sp.  T.,  1866,  Hoffman  v.  Schultz,  31  How.  Pr.,  385. 


*  The  amendment  consists  in  substituting  the  words  "  was  commenced  " 
instead  of"  is  pending ;"  inserting  the  words  italicised  above ;  and  by  requiring 
notice  of  the  application  to  cancel,  and  prescribing  the  mode  of  cancellation. 


536  ABBOTTS'   PRACTICE  DIGEST. 


OFFICER. 

1.  Special  provisions  relative  to  the  removal  from  office  of  members  of  the 
Metropolitan  Board  of  Health.    1  Laws  of  1866, 118,  ch.  74,  §  9. 

2.  Persons  resisting  orders  issued  under  the  Metropolitan  Sanitary  Act,  may 
be  arrested  as  for  a  misdemeanor.    1  Laws  of  1866, 129,  ch.  72,  §  14,  subd.  2. 

3.  In  all  cases  where  the  governor  is  or  may  be  authorized  by  law  to  remove 
officers,  he  may  direct  the  testimony  to  be  taken  before  himself,  or  before 
a  commissioner  appointed  by  him  for  that  purpose,  with  the  same  effect,  as 
the  same  may  now  be  taken  and  had  before  a  county  judge,  and  may  appoint 
such  commissioner,  and  supercede  any  such  appointment,  and  appoint  a  new 
commissioner  whenever  it  shall  appear  uecessarv.    2  Laws  of  1866, 1353,  ch. 
629,  §  1. 

4.  The  governor  may  direct  the  district  attorney  of  the  county  where  the 
officer  sought  to  be  removed  may  reside,  or  the  attorney  general,  to  conduct 
the  inquiry  and  examination,  and  the  same  shall  be  had  at  such  place  in  the 
county  wherj  the  officer  sought  to  be  removed,  shall  reside,  as  shall  be  fixed 
by  the  governor  or  commissioners,  and  said  inquiry  and  examination  shall  be 
upon  like  notice,  and  with  the  same  means  of  procuring  evidence,  as  now 
provided  by  law  in  such  cases  before  a  county  judge.  The  governor  and  com- 
missioners may  enforce  obedience  to  subpoenas,  &c.     In  case  such  inquiry 
and  examination  shall  be  had  before  such  commissioners,  the  same  shall  be 
taken  and  certified ,  and  transmitted  to  the  governor,  as  if  taken  before  a 
county  judge.    Id.,  §§2, 3. 

5.  Appointment  of  criers  for  courts  of  record,  regulated.    2Lawsofl8QQ,  1257, 
ch.  588. 

MANDAMUS,  8,  9 :  PARTIES,  15, 16. 


PARTIES. 

1.  Upon  a  policy  of  insuranc.e  against  fire,  issued  to  A.,  loss,  if  any,  paj'able 
to  B.,  the  latter  may  maintain  an  action  in  his  own  name.      Supreme  Ct., 
1865,  Frink  v.  Hampden  Ins.  Co.,  Ante,  343. 

2.  The  cases  of  Grosvenor  v  Atlantic  Fire  Ins.  Co.  (17  N.  Y.,  391) ;  Freeman 
v.  The  Fulton  Fire  Ins.  Co.  (14  Abb.  Pr.,  398) ;  and  Fowler  v.  New  York 
Indemnity  Ins.  Co.  (26  N.  Y.,  425),  explained.     76. 

3.  A  married  woman  having  a  right  under  the  statute  of  1860  (Laws  of  1860 
ch.  66,  §  2),  to  keep  a  boarding-house  on  her  own  account,  and  consequently 
to  employ  servants,  for  any  injury  to  her  servant,  per  quod  servitium 
amisit,  a  right  of  action  accrues  to  the  wife,  equally  as  if  she  were  unmar- 
ried :  that  being  a  necessary  incident  to  the  right  to  carry  on  business  on 
her  own  account.    Hence,  for  seducing  and    debauching  her  servant, 
followed  by  a  loss  of  service,  she  may  sue  in  her  own  name,  without  join- 
ing her  husband  with  her.    Supreme  Ct.,  1865,  Badgley  v.  Decker,  44 
Barb.,  577. 

4.  Under  the  act  of  1849,  p.  528,  a  married  woman  may  hire  premises  in  her 
own  name  ;  and  she  may  maintain  an  action  in  her  own  name  for  a  trespass 
thereon  [16  N.  Y.,  71 ;  Code  of  Pro.,  §  114;    Laws  of  1860,   158,  §  7.] 
N.  Y.  Com.  PI,  1862,  Fox  v.  Duff,  1  Daly,  196. 

5  An  action  by  a  grantee  df  land,  where  the  grants  are  void  by  reason  of  an 
actual  adverse  possession,  may  be  maintained  in  the  name  of  the  grantor,  or 
his  or  her  heirs  or  legal  representatives.  Code  of  Pro.,  §  111  second  clause  as 
amended  by  2  Laws  of  1866, 1836,  ch.  824. 

• 


NEW  YORK  :  1866.  537 


6.  Where  at  common  law  the  suit  would  have  to  be  brought  in  the  name  of 
the  trustee,  for  the  benefit  of  the  ceslui  que  trust,  while-  in  equity  it  might 
be  brought  directly  by  the  latter — the  equitable  form  is  to  be  preferred, 
in  suing  under  the  Code  of  Procedure,  by  which  distinctions  in  the  form 
of  action  are  abolished.    N.  Y.  Com.  PL,  18C6,  Grinnell  v.  Buchanan,  1 
Daly,  538. 

7.  Where  the  title  to  property  owned  by  several  persons  jointly  is  held,  for 
business  convenience,  in  the  name  of  one  of  the  owners,  who  sells  the 
property  in  his  own  name,  but  for  the  benefit  of  all,  executing  a  bill  of 
sale  in  his  individual  name,  the  contract  enures  for  the  joint  benefit  of  all 
the  owners  ;  and  under  section  111  of  the  Code  of  Procedure, — which  pro- 
vides that  all  actions  shall  be  brought  in  the  name  of  the  real  party  in 
interest,— all  may  sue  upon  it,  although  the  purchaser  was  ignorant  of  the 
fact  that  any  other  persons  than  the  one  with  whom  he  contracted  were 
interested  in  the  property.  Supreme  Ct.,  1865,  Silliman  v.  Tuttle,  45  Barb., 
171. 

8.  A  participation  in  the  profits  of  the  business  by  a  party  as  a  compensation 
for  his  labor  or  services,  without  having  an  interest  in  the  principal  stock, 
or  in  the  profits  as  such,  or  any  right  to  control  the  business,  does  not 
make  him  a  partner,  within  the  rule  that  partners  must  all  join  in  bringing 
an  action.     He  must  havo  an  interest  in  the  stock,  with  a  right  to  control, 
and  thus  have  a  right  to  the  profits  as  the  result  of  the  capital  and  indus- 
try in  which  all  concerned  are  interested,  and  not  as  a  measure  of  compen- 
sation merely,  and  must  be  liable  for  losses.     [4  Sandf.,  311 ;  2  Comst., 
132 ;  Collyer  on  Part.,  {$  25,  45,  and  notes,  3d  Am.  Ed  ;  Story  on  Part., 
$  30.]     Supreme  Ct.,  1864,  Conklin  v.  Barton,  43  Barb.,  435. 

9.  Where  the  consideration  of  a  bond  proceeds  from  a  third  party,  who  is 
acting  in  the  name,  and  for  the  benefit  of  the  obligee  thereof,  such  obligee 
is  a  party  to  the  contract  in  such  a  sense  as  to  be  entitled  to  the  proper 
remedies  to  reform  or  to  collect  the  same.     Ct.  of  Appeals,  1865,  Nevius  v. 
Dunlap,  33  N.  Y.,  676. 

10.  One  of  numerous  policy-holders  in  an  insurance  company,  belonging  to  a 
class  of  policy-holders  entitled  to  participate  in  profits,  may  maintain  an 
action  on  his  own  behalf,  and  on  the  behalf  of  other  shareholders  who  are 
interested  with  himself  in  the  same  question,  and  who  may  elect  to  come 
in  and  contribute  to  the  expense  of  the  action,  to  compel  the  officers  of  the 
company  to  make  a  just  apportionment  of  profits.    But  this  can  only  be 
done  so  far  as  the  contracts  are  of  the  same  character.     The  action  cannot 
embrace  those  who  have  no  community  of  interests  with  the  plaintiffs,  or 
who  by  contract  or  circumstances  occupy  a  different  position  from  the 
plaintiff.    Supreme  Cl.,  Sp.  T.,  1865,  Luling  v.  Atlantic  Mut.  Ins.  Co..  45 
Barb.,  510;  S.  C.,  30  How.  Pr.,  69. 

11.  Where  several  legatees,  entitled  to  a  sum  of  money  bequeathed  to  them 
in  equal  shares,  join  in  a  power  of  attorney  to  another  person,  authorizing 
him  to  collect  for  them  their  respective  legacies,  each  legatee  may  main- 
tain an  action  in  sevoralty,  against  the  attorney,  to  recover  the  amount  of 
his  legacy.    Their  claims  are  several,  and  not  joint ;  and  each  was  entitled 


538  ABBOTTS'  PRACTICE  DIGEST. 


to  payment  from  the  defendant,  when  the  latter  received  the  money. 
Supreme  Ct.,  1864,  Power  v.  Hathaway,  43  Barb.,  214. 

12.  Section  484  of  the  Code  of  Procedure, — authorizing  the  name  of  a  relator 
to  be  joined  with  that  of  the  people, — amended  by  adding  that  in  every  such 
case  the  attorney  general  may  require,  as  a  condition  for  bringing  such  ac- 
tion, that  satisfactory  security  shall  be  given  to  indemnify  the  people  of  the 
State  against  the  costs  and  expenses  to  be  incurred  thereby.  2  Laws  of  1866, 
1847,  ch.  824,  §  18. 

13.  Several  freeholders  and  tax-payers  of  a  town  cannot  unite  as  plaintiffs  in 
a  suit  in  equity  to  enjoin  the  assessment  of  a  tax,  which,  though  it  would 
be  a  lien  upon  their  respective  lands,  would  not  affect  any  common  prop- 
erty owned  by  them.    [15  Barb.,  375.]    Supreme  Ct.,  1865,  Magee  v.  Cut- 
ler, 43  Barb.,  239. 

14.  Where,  by  articles  of  association  between  owners  of  real  property,  unit- 
ing for  the  purpose  of  its  generjil  improvement,  each  of  the  associates  sever- 
ally bound  himself  to  pay  a  ratable  proportion,  of  all  expenditures  for  the 
improvements  made  and  about  to  be  made  ; — Held,  that  an  action  to  recover 
payment  of  the  share  of  expense  due  from  one  member  was  properly 
brought  by  the  other  members  of  the  association.   Supreme  Ct,,  1864,  Troy 
Iron  and  Nail  Factory  v.  Corning,  45  Barb.,  231. 

15.  A  minister  plenipotentiary  of  a  foreign  power  is  not  exempt  from  the 
application  of  the  mechanic's  lien  law  of  this  State,  as  to  any  house  or 
building  which  is  not  used  as  a  mansion  for  purposes  connected  with  hia 
representative  character  ;  and  where  exemption  is  claimed,  it  must  appear 
by  the  proof  that  he  is  entitled  to  a  suspension  of  the  rule  that  the  lex  rei 
sites  controls,  respecting  real  property.      N.  Y.  Com.  PL,  1863,  Byrne  v. 
Herran,  1  Dal//,  344. 

16.  When  a  county  is  to  be  sued,  the  action  must  be  against  the  board  of  su- 
pervisors.    An  action  against  the  individual  members  cannot  be  sustained. 
[10  Wend.,  383  ;  19  Id.,  102  ;  5  Den.,  517;  9  How.  Pr.,  316.]      Supreme 
Ct.,  1864,  Magee  v.  Cutler,  43  Barb.,  239. 

17.  Where,  in  a  creditor's  action,  the  judgment  debtors  were  not  joined  as 
defendants,  but  it  appears  in  the  proceedings  in  the  case,  that  they  have, 
by  stipulation,  consented  to  be  bound  by  the  judgment,  and  relinquished 
all  title  and  claim  in  the  subject-matter  of  the  action,  the  court  is  at  lib- 
erty to  go  on,  without  their  presence,  to  final  judgment,  as  against  the  de- 
fendants named  in  the  pleadings.     [3  Russ,  34 ;  11  Paige,  147.]     Supreme 
CL,  1859,  Cowing  v.  Greene,  45  Barb.,  585. 

18.  To  sustain  a  demurrer  for  non-joinder  of  defendants,  it  must  appear  that 
the  party  demurring  has  an  interest  in  having  the  omitted  party  made  de- 
fendant; that  he  is  in  some  way  prejudiced  by  the  omission.      Supreme 
Ct.,  1865,  Stockwell  v.  Wager,  30  How.  Pr.,  271. 

19.  Where  the  complaint  charged  that  the  defendant,  after  the  death  of  his 
wife,  fraudulently  procured  the  foreclosure  of  a  mortgage  by  himself  and 
wife  on  premises  owned  by  his  wife  as  her  separate  estate,  and  through 
the  agency  and  instrumentality  of  other  persons  procured  the  title  to  the 
premises  under  the  foreclosure  in  his  own  name,  upon  which  he  subse- 
quently gave  a  mortgage  to  another  person,  and  the  plaintiffs  claimed  re- 
lief as  heirs-at-law  of  defendant's  wife,  that  the  title  of  the  premises  be 


NEW  YORK:  I860.  539 


PARTITION. 


declared  to  be  in  the  plaintiffs,  and  subject  to  the  last  mortgage  given  by 
the  defendant ; — Held,  that  a  demurrer  for  the  non-joinder,  as  defendants, 
of  the  persons  through  whose  instrumentality  the  defendant  procured  title 
to  the  premises,  and  his  mortgagee,  would  not  lie.  The  defendant  had  no 
interest  that  required  these  persons  to  be  made  defendants,  nor  could  he 
be  prejudiced  by  the  omission  to  make  them  parties,  or  his  case  improved 
by  making  them  parties.  The  interest  of  the  mortgagee  was  protected  by 
the  relief  demanded  in  the  complaint,  and  the  other  persons  could  not  be 
necessary  to  enable  the  defendant  to  establish  a  bona  fides  if  he  had  one,  or 
to  assist  him  in  answering  for  a  fraud  of  which  he  was  alone  charged.  Ib. 

20.  The  rule  that  a  dormant  partner  need  not  be  joined  as  a  defendant  with 
the  ostensible  members  of  the  firm,  is  not  confined  to  persons  whose  con- 
nection with  the  firm  is  absolutely  unknown.     Ct.  of  Appeals,  1864,  North 
v.  Bloss,  30  IV.  Y.,  374. 

21.  In  an  action  against  the  owners  of  a  vessel  for  supplies  furnished  her, 
where  only  one  of  the  defendants  was  served,  and  it  did  not  appear  by  the 
evidence  that  the  other  defendants  were  part  owners ; — Held,  that  there 
was  a  misjoinder  of  parties  defendant.,  which  the  defendant  served  was  en- 
titled to  take  advantage  of  at  the  trial,  and  his  motion  for  a  nonsuit  should 
be  granted.     The  plaintiff,  in  such  a  case,  must  prove  a  joint  indebtedness, 
tand  a  several  judgment  cannot  be  given.     JV.  Y.  Com.  PL,  1859,  Sager  v. 
Nichols,  1  Daly,  1. 

22.  Where  premises  were  insured  in  two  separate  companies  for  distinct 
sums,  and  each  contract  of  insurance  contained  the  same  stipulations  on 
the  subject  of  electing  to  re-build,  &c.,  and  both  companies  united  in  noti- 
fying the  insured  of  their  election  to  re-build  after  the  loss  ; — Held,  that 
the  insured  might  maintain  his  action  against  the  companies,  jointly  or 
severally,  for  a  breach  of  the  contract  to  re-build.      Ct.  of  Appeals,  1865, 
Morrell  v.  Irving  Fire  Ins.  Co.,  33  N.  Y.,  429. 

23.  Committee  or  guardian  of  a  non-resident  lunatic  infant,  who  is  made  de- 
fendant in  proceedings  for  a  partition,  brought  in  a  court  of  this  State, 
may  properly  apply  by  petition  for  the  appointment  of  a  guardian  ad 
litem,  residing  within  the  jurisdiction  of  the  court.      Ct.  of  Appeals,  1866, 
Rogers  v.  McLean,  31  How.  Pr.,  279. 

24.  The  commissioners  of  the  sinking  fund  of  the  city  of  New  York  may 
maintain  an  action  to  enjoin  the  unlawful  removal  of  the  markets  from 
which  the  city  derives  a  revenue.     Supreme  Ct.,  Sp.  T.,  1866,  Hoffman  v- 
Schultz,  31  How.  Pr.,  385. 

CLAIM  AND  DELIVERY,  1 :  COMPLAINT,  5  :  COSTS,  11:  EJECTMENT:  MARINE 
COURT,  3 :  WITNESS. 

PARTITION. 

1.  The  party  objecting  to  the  validity  of  a  sale  on  partition  among  heirs,  on 
the  ground  that  four  years  have  not  elapsed  since  the  decedent's  death,  and 
therefore  a  good  title  cannot  be  given  if.  it  should  be  found  that  his  per- 
sonal estate  was  insufficient  to  pay  his  debts,  should  show  there  is  some 
cause  to  believe  the  personal  estate  was  insufficient  to  pay  the  debts.  In 


540 


PLEADING. 


the  absence  of  any  proof  to  that  effect,  the  presumption  is  adverse  thereto 
[5  Abb.  Pr.,  53;  7  Paige,  550.]  Supreme  Ct.,  18G5,  Bogert  v.  Bogert, 
45  Barb.,  121. 

2.  The  power  of  the  supreme  court  at  a  general  term  to  order  an  amend- 
ment of  proceedings  had  in  a  partition  suit,  pending  on  appeal, — stated. 
Ct.  of  Appeals,  1866,  Kogers  v.  McLean,  31  How.  Pr.,  279. 

PARTNERSHIP. 

1.  Where  the  articles  of  copartnership  do  not  give  either  partner  a  right  to 
dissolve  at  will,  an  allegation  by  one  partner,  contained  in  a  pleading, 
and  not  responsive  to  any  proposal  of  his  adversary,  of  his  desire  to  dis- 
solve, is  not  equivalent  to  an  acceptance  of  an  offer  to  dissolve  made  by 
the  other  party,  a  month  previous.      N.  Y.  Superior  Ct.,  1863;  Smith  v. 
Mulock,  Ante,  375. 

2.  A  provision  in  articles  of  copartnership,  prescribing  a  definite  period  for 
its  continuance,  is  sufficient,  without  any  prohibition  of  an  earlier  dissolu- 
tion, to  prevent  either  party  from  dissolving  it  at  will.     Ib. 

3.  The  rule  that  when  a  balance  is  struck  between  partners,  and  a  promise 
to  pay  is  made,  an  action  at  law  lies  to  recover  the  amount, — applied, 
where,  on  the  dissolution  of  an  unincorporated  association,  a  resolution 
was  passed  determining  the  share  of  the  common  fund  which  should  be 
paid  to  each  member,  and  the  defendant  (the  treasurer)  promised  to  pay 
such  balances.      N.  Y.  Com.  PI,  1866,  Kochler  v.  Brown,  31  How.  Pr., 
235. 

CAUSE  OF  ACTION,  13 :  GOOD-WILL  :  PARTIES,  8,  20 :  VARIANCE,  1. 

PAYMENT. 

Where  a  charter  party  was  made  in  a  foreign  country  subsequent  to  the 
legal  tender  act,  with  a  stipulation  that  the  freight  was  to  be  paid,  if  cargo 
were  discharged  in  the  United  States,  in  gold  'and  silver  dollars,  or  by  ap- 
proved bills  on  London ; — Held,  that  freight  on  discharging  cargo  here 
could  be  paid  in  legal  tender  notes.  N.  Y.  Superior  Ct.,  1866,  Wilson  v. 
Morgan,  Ante,  174. 

PLEADING. 

1.  A.n  affirmative  allegation  which,  if  uncontroverted,  is  to  be  taken  as  true, 
should  be  direct  and  positive  ;  one  which  at  most  merely  implies  a  fact  or 
justifies  an  inference  that  such  is  or  will  be  claimed  to  be  the  fact,  should 
not  be  construed  as  a  material  allegation.      [3  Duer,  1.61.]      Supreme  Ct., 
1865,  West  v.  American  Exchange  Bank,  44  Barb.,  175. 

2.  The  burden  of  charging,  as  well  as  proving,  fraud,  is  on  the  party  alleging 
it ;  and  while  it  is  not  necessary  or  proper  that  he  should  spread  out  in 
hia  pleading  the  evidence  on  which  he  relies,  he  must  aver,  fully  and  ex- 
plicitly, the  facts  constituting  the  alleged  fraud.      Mere  conclusions  will 
not  avail.     Supreme  Ct ,  1865,  Butler  v.  Viele,  44  Barb.,  166. 

3.  An  action  to  recover  back  money  lost  at  play,  is  not  an  action  for  a  pen 


NEW  TOEK  :  1866.  541 


PLEADIXG. 


alty  or  a  forfeiture,  within  the  meaning  of  the  provision  of  the  Revised 
Statutes,  which  gives  a  short  mode  of  pleading  in  such  cases.  N.  Y.  Com. 
PL,  1866,  Arrieta  v.  Morrisey,  Ante,  439. 

4.  Where  an  infant  sues  by  a  guardian  ad  litem,  the  complaint  must  allege 
the  due  appointment  of  the  guardian.     [13  How.  Pr.,  413.]     Supreme  Ct.t 
1865,  Grantman  v.  Thrall,  44  Barb.,  173 

5.  Where  a  complaint  was  entitled — "  J.  G.,  by  J.  G.,  his  guardian,  v.  G.  T.," 
and  commenced  thus :  "  The  plaintiff  complaining,  states,"  &c.,  but  con 
tamed  no  allegation  that  the  plaintiff  was  an  infant,  under  the  age  of 
twenty-one  years,  or  that  the  guardian  was  appointed  by  any  court;— 
Held,  bad  on  demurrer,  for  the  reason  that  while  it  showed  that  the  plain- 
tiff appeared  by  guardian,  it  did  not  show  that  the  guardian  was  duly  ap- 
pointed, so  as  to  authorize  such  appearance.     [8  Cow.,  235.]     Ib. 

6.  A  complaint  by  a   receiver,  appointed  in   supplementary  proceedings, 
alleged  that  a  fund  was  given  by  will  to  the  defendants  as  trustees,  in 
trust,  to  keep  the  same  invested,  and  pay  the  interest  to  the  execution 
debtor  during  his  life ;  that  the  defendants  had  collected  interest  since  the 
appointment  of  tho  plaintiff  as  receiver,  but  refused  to  pay  the  same  over 
to  the  plaintiff.      It  did  not  aver  that  any  part  of  the  interest  was  in  the 
hands  of  the  defendants  as  a  surplus  above  what  was  necessary  for  the 
debtor's  support ; — Held,  that  the  complaint  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.      Ct.  of  Appeals,  1865,  Graff  v.  Bonnett,  31 
N.  Y.,  9. 

7.  The  interest  of  the  debtor  in  the  income  of  the  fund  under  such  a  trust  is 
only  subject  to  the  claims  of  creditors,  to  the  extent  of  a  surplus  over  and 
above  what  is  necessary  or  proper  for  his  maintenance  and  support.      The 
court  cannot  infer  that  such  a  surplus  exists.    It  is  the  duty  of  the  pleader, 
by  proper  averments,  to  show  that  such  fact  exists.     Ib. 

8.  In  an  action  against  the  New  York  Central  Railroad  Company  to  recover 
a  statute  penalty,  for  exacting  an  excessive  fare ; — Held,  that  it  was  not 
necessary  that  the  complaint  should  set  out  the  various  enactments  con- 
solidating the  several  companies  which  make  up  the  New  York  Central 
Railroad  Company,  so  as  to  show  that  the  latter  company  is  restricted  to  a 
fare  of  two  cents  per  mile  for  each  passenger,  but  that  it  was  enough  to 
allege  that  the  defendants  had  been  duly  organized ;  that  they  were  entitled 
to  demand  and  receive  of  passengers  a  certain  rate  of  fare,  and  that  they 
had    demanded    and  received  a  higher  rate.     Ct.  of  Appeals,  1864,  Nellis 
v.  New  York  Central  Railroad  Company,  30  N.  Y.,  505. 

9.  Whether  a  judgment  creditor,  injured  by  the  escape  of  his  debtor  from 
arrest,  elects  to  sue  tho  sheriff  at  common  law  for  an  escape,  or  under  sec- 
tion 201  of  the  Code  of  Procedure,  as  bail,  is  manifested  by  the  complaint. 
If  he  proceeds  against  the  sheriff  as  bail,  he  must  set  forth  the  proceed- 
ings to,  and  including  the  escape,  and  allege  that  the  defendant  is  bail ; 
and  must  demand  the  appropriate  judgment.      If  he  elects  to  prosecute 
for  an  escape,  the  complaint  will  contain  the  same  matters,  but  all  allega- 
tions as  to  the  character  of  the  defendant  as  bail,  should  be  omitted,  as 
•wholly  irrelevant  to  the  cause  of  action  for  an  escape.      A  complaint  in 
such  a  case,  which  makes  no  mention  of  the  defendant  as  bail,  and  con- 


542  ABBOTTS'    PRACTICE  DIGEST. 


PiEADIKO. 


tains  nothing  manifesting  an  intention  or  election  to  hold  him  liable  in 
that  character  is  to  be  treated  as  intending  on  an  action  for  an  escape.  Ct. 
of  Appeals,  1864,  Smith  v.  Knapp,  30  N.  Y..  581. 

10.  An  allegation  that  the  defendants  have  fraudulently  confederated  and 
conspired  together  for  the  purpose  of  harassing  the  plaintiff  by  prosecut- 
ing separate  suits  against  him  for  the  same  cause  •    and  that  such  suits 
have  been  commenced,  and  are  prosecuted  in  pursuance  of  such  conspiracy, 
is  not  sufficient  to  sustain  an  action,  or  uphold  an  injunction,  when  the  de- 
fendants claim  adversely  to  each  other,  as  well  as  to  the  plaintiff,  and  no 
direct  fraud  is  charged  ;  the  plaintiff  merely  averring  his  belief  of  such 
conspiracy,  because  the  defendants  have  brought  separate  actions  for  the 
same  cause,  and  by  the  same  attorney.    Fraud,  in  such  a  case,  is  not  to  be 
presumed  •  and  the  conspiracy  should  be  distinctly  averred.     Supreme  Ct., 
1866,  McIIenry  v.  Hazard,  45  Barb.,  657. 

11.  In  a  complaint  in  a  creditor's  action  seeking  to  set  aside  a  conveyance 
as  fraudulent,  an  allegation  that  the  grantee,  the  debtor's  wife,  gave  no 
consideration  for  the  premises  conveyed  to  her,  and  that  the  whole  consid- 
eration came  from  her  husband,  is  a  sufficient  allegation  of  bad  faith  or 
fraudulent  intent  on  her  part.     Supreme  Ct.,  1864,  Newman  v.  Cordell,  43 
Barb.,  448. 

12.  In  a  complaint  to  set  aside  a  deed  as  fraudulently  obtained,  a  general 
allegation  in  the  complaint  that  the  grantee  procured  the  deed  by  "  false  and 
frandulent  representations  and  practices,  and  by  under  and  improper  in- 
fluences," is  insufficient,  without  stating  the  nature  of  the  alleged  repre- 
sentations and  practice,  or  influences.     Supreme  Ct.,  1865,  Butler  v.  Viele, 
44  Barb.,  166. 

13.  The  Code  [$  149],  requires  the  defendant  to  deny  in  his  answer  only 
those  matters  alleged  in  the  complaint  which  he  means  to  controvert.  And 
it  does  not  follow  that  because  he  makes  no  denial  of  any  allegation  in  the 
complaint,  this  is  such  an  admission  of  the  cause  of  action  that  a  judgment 
contrary  to  the  admission  is  erroneous,  if  affirmative  matter  of  defence  is 
stated.     Ct.  of  Appeals,  1865,  Newell  v.  Doty,  33  N.  Y.,  83,  92. 

14.  Where  an  answer  is  susceptible  of  being  construed  to  contain  either  of 
two  defences,  one  of  payment  and  the  other  of  counter-claim,  the  answer 
should  be  construed  as  setting  up  only  the  defence  of  payment,  and  not  as 
containing  a  counter-claim,  and  therefore  requiring  a  reply.     Supreme  Ct., 
1864,  Burke  v.  Thome,  44  Barl,,  363. 

15.  In  an  action  to  recover  for  work  done  by  the  plaintiff  for  the  defendant, 
the  answer,  after  admitting  the  performance  of  the  labor,  set  forth  for  a  de- 
fence to  the  demands  stated  in  the  complaint,  that  the  defendants,  during 
the  time  of  the  performance  of  the  labor,  h&dpaid  divers  sums  of  money  to 
and  for  the  plaintiff,  to  apply  in  part  payment  for  said  labor,  specifying 
the  amounts.    It  then  claimed  that  the  plaintiff  was  indebted  to  the  defen- 
dants for  the  said  sums  of  money,  and  alleged  that  the  defendants  would 
insist  upon  the  sums  so  paid,  as  a  counter-claim  in  the  action,  and  de- 
manded judgment  for  costs. — Held,  that  the  answer  did  not  set  up  a 
counter-claim  so  as  to  require  a  reply,  but  that  the  facts  pleaded  consti- 


KEW  YOKE:  1866.  543 


FLKADIKO. 


tuted  a  defence  of  payment  only  :  and  that,  therefore,  although  there  -was 
no  reply,  the  whole  answer  did  not  stand  admitted.     Ib. 

16.  A  denial  may  be  general  or  specific  at  the  option  of  the  pleader,  but  in 
either  case  it  must  be  direct  or  unequivocal.     If  it  merely  implies  that  the 
allagation  is  controverted,  or  justifies  an  inference  that  such  is,  or  will  be 
claimed  to  be  its  effect,  it  will  not  be  construed  as  a  denial.     Supreme  Ct., 
1865,  West  v.  American  Exchange  Bank,  44  Barb.,  175. 

17.  An  allegation  in  an  answer  merely  in  some  respects  inconsistent   with 
the  allegations  in  the  complaint,  does  not  amount  to  a  denial.     [21  Barb., 
190.]    Supreme  Ct.,  1865,  West  v.  American  Exchange  Bank?  44  Barb.,  175. 

18.  Where  a  joint  answer  of  several  defendants  denies  an  allegation  in  the 
complaint  which  the  plaintiff  must  prove  to  establish  his  cause  of  action 
against  some  of  the  defendants,  but  which  he  need  not  prove  to  entitle 
him  to  recover  against  the  others,  the  answer  raises  no  material  issue  for 
the  defendants  as  to  whom  the  plaintiff  must  prove  such  allegation. 
Supreme  Ct.,  1866,  Bank  of  Cooperstown  v.  Corlies,  Ante,  412. 

19.  In  an  actiop  to  recover  the  possession  of  lands  from  several  defendants, 
a  defendant  who  does  not  set  up  in  his  answer  that  his  occupation  and 
possession  were  exclusive  and  in  severalty,  and  that  the  other  defendant 
was  in  the  exclusive  occupation  and  possession  of  the  remaining  portion, 
thereby  waives  the  objection  that  the  plaintiff  could  not  maintain  the  ac- 
tion against  him  and  the  other  defendant  jointly ;  and  the  plaintiff  is  not 
bound  to  elect  at  the  trial  against  which  of  the  defendants  he  will  pro- 
ceed.    [2  Kern.,  580.J      Supreme  Ct.,  1865,  Dillaye  v.  Wilson,  43  Barb., 
261. 

20.  That  the  defence  of  total  or  partial  payment  is  new  matter,  which  must 
be  set  up  in  the  answer  for  evidence,  or  it  is  admissible  upon  the  trial. 
Ct  of  Appeals,  1865,  Morrell  v.  Irving  Fire  Insurance   Co.,  33  N.  Y., 
429. 

21.  If  an  answer  does  not  sufficiently  disclose  the  particulars  of  a  transaction, 
relied  on  as  a  defence,  the  plaintiff's  remedy  is  by  motion  under  section 
160  of  the  Code  of  Procedure  to  make  the  answer  more  definite  and  cer- 
tain. He  cannot  accept  the  plea,  go  to  trial  upon  it,  and  then  interpose  the 
objection  for  the  first  time  that  it  is  not  sufficiently  descriptive  of  the 
particulars  relied  on.     Ct.  of  Appeals,  1865,  Farmers'  &  Citizens'  Bank  v. 
Sherman,  33  N.  Y.,  69. 

22.  Where  the  defence  of  payment  is  intended  to  be  set  up,  it  is  not  neces- 
sary that  the  answer  should  disclose  the  particulars  of  the  transaction  re- 
lied on  as  constituting  payment.   Under  an  averment  that  the  demand  has 
been  paid,  it  is  competent  to  prove  that  payment  has  been  in  fact  made, 
whether  in  cash,  or  in  some  other  way.     Ct.  of  Appeals,  1865,  Farmers' 
&  Citizens'  Bank  v.  Sherman,  33  N.  Y.,  69. 

23.  It  would  be  bad  pleading  to  allege  evidence  of  the  payment  instead  of 
averring  the  fact  itself;  and  when  the  fact  of  payment  is  pleaded,  it  is 
not  required  that  the  particular  facts  relied  on  as  amounting  to  payment 
should  have  been  set  forth  in  the  answer.     It  is  enough  if  those  facts  sus- 
tain the  plea  of  payment.    Ib. 


544  ABBOTTS'  PRACTICE   DIGEST. 


PLEADING. 


24.  An  allegation  in  the  complaint  that  the  defendants  sold  the  plaintiffs' 
property  for  a  certain  sum,  and  that  they  "  have  had  the  use  of,  and  in- 
terest upon,  said  money  since  it  was  received  as  aforesaid  by  the  defen. 
dants  for  the  plaintiffs'  use,"  ia  sufficiently  controverted  by  a  denial  in  de- 
fendants' answer  that  they  sold  the  plaintiffs'  property,  or  that  they  re- 
ceived therefor  any  money  whatever  to  the  plaintiffs'  use.    N.  Y.  Superior 
Ct.,  18G3,  Robinson  v.  Corn  Exchange  Insurance  Company,  Ante,  186. 

25.  In  an  action  upon  an  undertaking  which  was  given  upon  issuing  an  in- 
junction, and  was  conditioned  to  pay  all  damages  sustained   thereby,   "if 
the  court  shall  finally  decide  that  the  plaintiff  (in  the  injunction  suit)  was 
not  entitled  thereto,"  if  the  complaint  avers  that  judgment  has  been  ren- 
dered in  the  injunction  suit,  in  favor  of  the  defendants,  but  does  not  dis- 
close the  ground  of  the  judgment,  nor  aver  in  terms  that  the  court  has 
decided  that  the  plaintiff  therein  was  not  entitled  to  the  injunction,  an 
answer  merely  denying  that  it  has  been  so  decided,  and  that  the  present 
plaintiff  has  been  damnified,  and  that  defendant  is  indebted  to  him,  is  not 
irrelevant,  but  raises  a  material  issue.    N.  Y.  Superior  Ct.,  1863,  De  For- 
est v.  Baker,  Ante,  34. 

26.  Nor  is  it  shown  to  be  sham,  by  an  affidavit  stating  that  the  complaint 
in  the  injunction  suit  was  dismissed,  but  not  disclosing  on  what  ground.  16. 

27.  In  an  action  to  recover  money  lost  at  play,  since  the  statute  gives  the 
action  only  for  losses  exceeding  twenty-five  dollars  at  one  sitting,  and  re- 
quires it  to  brought  within  three  months  after  payment,  the  defendant  is 
entitled  to  require  the  plaintiff  to  specify  in  his  complaint  the  amount  lost 
s,t  each  sitting,  and  the  time  of  payment.      It  is  not  sufficient  that  these 
facts  might  be  called  forth  by  requiring  a  bill  of  particulars.   N.  Y.  Com. 
PL,  1866,  Arrieta  v.  Morrissey,  Ante,  439. 

28.  Upon  a  demurrer  to  a  distinct  defence,  stated  separately  in  an  answer, 
no  resort  can  be  had  to  other  portions  of  the  answer  to  sustain  such  de- 
fence, for  each  defence  must  be  complete  in  itself.      [7  Abb.  Pr.,  372 ;  10 
Id.,  246 ;  4  Bosw.,  391.]      Supreme  Ct.,  1865,  Jackson  v.  Van  Slyke,  44 
Barb.,  116,  note. 

29.  The  plaintiff  may  demur  to  an  amended  answer,  just  as  if  it  were  an 
original  one.      The  rule  is  well  settled  that  the  amended  pleading  takes 
the  place  of  and  supersedes  the  original  one.      [4  How.  Pr.,  174;  13  Abb 
Pr.,  92 ;  Va,n  Santv.  PL,  795.]    Supreme  Ct.,  Sp.  T.,  1865,  Sands  v.  Calkins, 
30  How.  Pr.,  1. 

30.  An  answer  may  be  once  amended  by  the  party,  of  course;,  but  where  a 
demurrer  has  been  interposed  to  an  answer,  and  the  defendant  amends  of 
course,  to  which  amended  answer  the  defendant  also  interposes   a  demur- 
rer, the  defendant  cannot  serve  a  second  amended  answer  without  leave  of 
the  court.     Supreme  Ct.,  Sp.  T.,  1865,  Sands  v.  Calkins,  30  How.  Pr.,  1. 

31.  An  objection  for  a  defect  of  parties, — e.  g.,  the  non-joinder  of  a  copart- 
ner as  plaintiff, — which  is  not  apparent  upon  the  face  of  the  complaint, 
can  only  be  taken  by  answer.      [Code  of  Pro.,  $$  144,  147.]      And  if  not 
thus  interposed,  the  defendant  must  be  held  to  have  waived  the  objection. 
[Id.,  $  148  ;  3  Kern.,  336 ;  33  Barb.,  527  ;  31  Id.,  238.]     Supreme  Ct.,  1864, 
Conklin  v.  Barton,  43  Barb.,  435. 


NEW   YORK:    1866.  545 


32.  A  motion  to  dismiss  the  complaint,  on  account  of  a  defect  of  parties  de- 
fendant, cannot  be  made  at  the  trial,  where  the  objection  is  net  taken, 
either  by  demurrer  or  answer.      Supreme  Ct.,  1865,  Tremper  v.  Conklin, 
44  Barb.,  456. 

33.  When,  to  resist  a  motion  to  strike  out  as  sham  a  defence  good  on  its  face, 
admissions  on  the  part  of  the  plaintiff  are  positively  sworn  to,  which  are 
neither  contradicted,  qualified  or  questioned,  and  which  tend  to  sustain  the 
defence,  the  motion  should  be  denied.      N.  Y.  Com.  PI.,  1860,  Iladden  v. 
New  York  Silk  Manufacturing  Company.  1  Daly,  388. 

34.  An  answer  will  not  be  adjudged  to  be  sham  simply  upon  an  affidavit 
that  it  is  false,  for  this  would  be  trying  the  merits  of  the  defence  upon 
affidavits.      But  the  court  must  be  satisfied,  from  an  inspection  of  the 
pleading,  or  from  circumstances  brought  to  its  knowledge,  that  the  object 
of  the  pleader  was  to  delay  or  annoy  the  plaintiff,  or  to  trifle  with  the 
the  court.      [1  East,  237  ;  1  Id.,  369  j  3  Taunt.,  339 ;  1  Chitty  K.,  424,  and 
note  a ;  Id.,  564,  and  note  a;   5  Bar.  &  Ad.,  750,  note  ay  6  Cow.,  34.] 
N.  Y.  Com.  PL,  1860,  Hadden  v.  New  York  Silk  Manufacturing  Company, 
1  Daly,  388. 

35.  Sham  pleading  is  the  setting  up  of  a  defence  which  has  not  only  no 
foundation  of  fact,  but  which,  it  is  manifest,  was  interposed  for  vexation  or 
delay.     Ib. 

36.  In  an  action  for  damages  for  negligence,  it  is  not  necessary  that  the  an- 
swer should  aver  that  the  plaintiff's  negligence  contributed  to  the  injury, 
in  order  to  enable  defendant  to  offer  evidence  of  that  fact.      It  may  be 
shown  under  a  general  denial  of  the  plaintiff's  charge  that  the  injury  was 
caused  by  the  defendant's  negligence.      Supreme  Ct.,  1864,  MacDonnell  v. 
Buffum,  31  How.  Pr.,  154. 

37.  In  ati  action  upon  an  undertaking  given  to  procure  a  discharge  from  ar- 
rest, the  complaint  13  bad  upon  demurrer,  if  it  omits  to  aver  the  issuing 
and  return  of  an  execution  against  the  property  of  the  debtor  arrested,  and 
also  the  issuing  and  return  of  an  execution  against  the  person.      Supreme 
Ct.,  1865,  Gauntley  v.  Wheeler,  31  How.  Pr.,  137. 

AMENDMENT:  ANSWER:  APPEAL,  39:  ARREST,  2:  CAUSE  OF  ACTION :  COM- 
PLAINT: COUNTER-CLAIM:  COUNTY  COURT,  2:  DEFENCES:  INTER- 
PLEADER: JOINT  DEBTORS:  PARTIES,  18,  19:  PARTNERSHIP,  1:  SET- 
OFF  :  SUPPLEMENTAL  PLEADING  :  VARIANCE  :  VERIFICATION. 

PLEDGE. 

The  lien  of  a  pledgee  is  destroyed  by  a  tender  of  the  amount  due.      N.  Y. 
Superior  Ct.,  1863,  Haskins  v.  Kelly,  Ante,  63. 
CAUSE  OF  ACTION,  11. 

POWERS. 

Where  one  of  the  assessors  named  in  the  ordinance  of  a  municipal  corpora- 
tion resigns,  and  a  successor  is  appointed  by  the  officers  in  whom  the 
power  of  appointment  is  vested  by  law,  the  latter  must  be  notified  to  act. 
N.  S.— VOL.  I.— 35. 


546  ABBOTTS'  PEACTICE  DIGEST. 


QUESTIONS   OF   LAW  AXD    FACT. 


The  remaining  members  of  the  board  have  not  power  to  proceed  without 
his  presence,  or  notice  to  him ;  and  an  assessment  made  under  such  cir- 
cumstances is  irregular.  [2  Key.  Stat.,  555 ;  3  Den.,  594.]  Supreme  Ct., 
1866,  Beekman's  Petition,  Ante,  449 ;  affirming  S.  C.,  19  Abb.  Pr.,  245. 

PRESUMPTIONS. 

EVIDENCE. 

PROHIBITION   (WRIT  OF). 

Writ  of  prohibition  to  command  supervisors  to  desist  from  laying  a  tax  on  a 
national  bank — refused,  upon  the  grounds  that  the  legal  right  was  doubt- 
ful, and  the  remedy  would  involve  public  inconvenience.  Supreme  Ct.r 
1864,  People  v.  Supervisors  of  Ulster,  31  How.  Pr.,  237. 

PROTEST. 
NOTICE,  3. 

QUESTIONS    OF    LAW    AND    FACT. 

1.  Where  witnesses  dift'er  as  to  the  facts,  the  question  whether  there  was 
a  necessity  which  justified  the  master  of  a  vessel  in  selling  a  cargo  at  an 
intermediate  port,  must  be  submitted  to  the  jury.     Ct.  of  Appeals,  1864, 
Butler  v.  Murray,  30  N.  Y.,  88. 

2.  What  is  a  reasonable  time  in  which  to  deliver  a  passenger  and  his  bag- 
gage, is  a  question  of  fact,  and  the  finding  of  the  jury  on  that  question  will 
not  be  disturbed.     N.  Y.  Com.  PL,  1862,  Gilhooly  v.  N.  Y.  &  Savannah 
Steam  Nav.  Co.,  1  Daly,  197. 

3.  The  question  as  to  the  reasonableness  of  the  amount  of  money  carried  by 
a  passenger  in  his  trunk,  for  his  traveling  expenses,  is  one  to  be  deter- 
mined by  the  jury,  or  by  a  referee  ;  and  if  it  has  been  passed  upon  by  a 
referee,  in  a  given  case,  his  decision  should  not  be  disturbed.     Ct.  of  Ap- 
peals, 1864,  Merrill  v.  Grinnell,  30  N.  Y.,  594. 

4.  What  constitutes  negligence  is  a  question  of  fact  for  the  jury.    Ct.  of  Ap- 
peals, 1866,  Besigal  v.  N.  Y.  Central  R.  R.  Co.,  31  How  Pr.,  181. 

5.  While  negligence  is  usually  a  question  of  fact,  for  the  jury,  yet  when  the 
undisputed  facts  show  that  the  defendant  is  guiltless  of  all  blame,  the  case 
resolves  itself  into  a  question  of  law,  for  the  determination  of  the  court 
upon  the  evidence  introduced.     Supreme  Ct.,  1864,  Calkins  v.  Barger,  44 
Barb.,  424. 

C.  Whether  the  matter  litigated  in  a  former  action  (in  a'justice's  court)  was 
a  claim  in  the  nature  of  trespass  or  trover  for  a  chattel,  or  only  a 
claim  for  damages  for  detaining  it,  is  a  question  of  fact,  which  should  be 
left  to  the  jury  under  proper  instructions  from  the  court.  So  held,  where 
the  complaint  in  the  justice's  court  did  not  clearly  state  the  cause  of  action 
intended.  Ct.  of  Appeals,  1865,  Thurst  v.  West,  31  N.  Y.,  210. 


NEW  YOEK:  1866.  547 


QUESTIONS  OF  LAW    AND   PACT. 


7  Very  slight  evidence  that  a  person  assuming  to  act  as  the  defendant's 
agent;  was  in  fact  bis  agent,  should  suffice  to  allow  the  question  to  go  to 
the  jury  ;  as  the  defandant  has  it  in  his  power,  now  that  parties  may  be 
witnesses  in  their  own  case,  to  show  at  once  if  the  fact  were  otherwise, 
and  that  the  acts  of  the  agent  were  without  his  knowledge  or  authority. 
N.  Y.  Com.  Pleas,  1863,  Western  Transportation  Co.  v.  Haw  ley,  1  Daly, 
327. 

8.  Fraud  and  fraudulent  intent,  is  always  a  question  of  fact  for  the  jury : 
and  although  there  are  cases  where  it  is  said  the  law  presumes  fraud  from 
certain  acts,  yet  that  presumption  is  only  the  conclusion  of  the  law  upon 
the  facts  as  they  are  proven.     Supreme  Ct.,  1865,  Wakeman  v.  Dally,  44 
Barb.,  498. 

9.  In  a  creditors'  action  the  question  whether  the  conveyance  was  made  in 
good  faith  and  for  a  valuable   consideration, — Held,  to  be  for  the  jury. 
Supreme  Ct.,  1864,  Newmann  v.  Cordell,  43  Barb.,  448. 

10.  The  question  of  fraud  in  a  sale  of  property  is  a  question  of  fact  for  the 
jury.     Ct.  of  Appeals,  1865,  Mathews  v.  Rice,  31  JV   Y.,  457. 

11.  Where  the  managing  members  of  an  embarrassed  corporation  unite  in 
forming  a  new  one  under  the  general  law,  and  then  transfer  to  it  the 
property  of  the  former,  and  a  judgment  creditor  of  the  former  corporation 
issues  an  execution  upon  his  judgment,  and  levies  it  upon  the  property  so 
transferred,  and  becomes  himself  the  purchaser  at  the  sale,  under  such 
execution,  and  a  judgment  creditor  of  the  latter  corporation  afterwards 
levies  his  execution  upon  the  same  goods,  as  the  property  of  the  latter  cor- 
poration, in  an  action  by  the  former    judgment  creditors  against  the 
latter,   for    taking    such    property,    the    question    whether  the  latter 
corporation  was  formed  by  the  acting  members  of  the  former,  to  hinder, 
delay,  and  defraud  their  creditors,  may  be  raised,  and  submitted  to  the 
jury  on  proper  evidence.     Ct.  of  Appeals,  1865,  Booth  v.  Bunce,  33  N.   Y. 
139. 

12.  The  question  as  to  the  fraudulent  purpose  of  such  second  corporation, 
involved  in  such  inquiry,  being  submitted  to  the  jury, — Held,  that  their 
finding  thereon  is  conclusive.     Ib. 

13.  Where  the  maker  of  a  maturing  note,  drawn  payable  at  a  bank  at  a  dis- 
tance, is  required,  as  a  condition  of  renewing  it,  to  pay  in  addition  to  in 
terest,  a  per  centage  under  name  of  u  difference  of  exchange"  between  the 
residence  of  the  parties,  and  the  place  where  the  note  is  made  payable,  it  is 
a  question  of  fact,  and  must  be  passed  upon  as  such,  whether  the  transac- 
tion was  or  not  intended  for  a  device  for  evading  or  violating  the  statute. 
Ct.  of  Appeals,  1865,  Price  v.  Lyons  Bank,  33  JV.    Y.,  55.     Followed  in 
Beals  v.  Benjamin,  Id.,  61,  67. 

13.  In  what  cases  it  is  the  province  of  the  jury  to  determine,  upon  evidence 
as  to  the  usage  of  trade,  what  was  the  intention  of  the  parties.  Pollen  v. 
Leroy,  30  JV.  Y.,  549  ;  affirming  S.  C.,  10  Bosw.,  38. 

15.  The  right  to  interest,  in  an  action  for  money  received,  is  a  question  .of 
law,  not  of  fact.  It  is  only  in  the  class  of  cases  where  interest  may  be 
charged  against  a  defendant  as  damages,  that  he  has  a  right  to  have  the 


548  ABBOTTS'  PRACTICE  DIGEST. 


jury  pass  upon  the  question.     N.  Y.  Superior  Ct.,  1863,  Robinson  v.  Corn 
Exchange  Insurance  Co.,  Ante,  186. 

16.  The  question  when,  and  by  whom,  an  alteration  in  the  date  of  a  note 
was  made  ; — Held,  a  question  of  fact  for  the  jury.  Supreme  Ct.,  1866,  Ar- 
tisans' Bank  v.  Backus,  31  How.  Pr.,  242. 

TRIAL. 


KECEIVER. 

1.  The  successor  or  successors  of  the  receiver  of  any  insolvent  corporation  or 
joint  stock  association  for  banking  purposes,  who  is  removed,  and  neglects 
for  sixty  days  after  the  appointment,  of  the  successor,  to  pay  over  the  moneys 
remaining  in  his  hands,  may  bring  an  action  in  any  court  of  competent  ju- 
risdiction, for  the  moneys  so  neglected  to  be  paid  over,  or  any  part  thereof, 
against  the  receiver  or  receivers  so  removed,  and  his  or  their  sureties  on  the 
bond.    1  Laws  of  1866,  44,  ch.  26. 

2.  A  receiver,  appointed  in  proceedings  supplementary  to  execution,  does 
not  become  thereby  vested  with  the  property  which  belonged  to  the  judg- 
ment debtor  at  the  time  of  the  commencement  of  the  proceedings^  and  has 
been  transferred  by  the  debtor  subsequent  thereto,  and  before  the  appoint- 
ment of  the  receiver.      Supreme  Ct.,  1865,  Fillmore  v.  Horton,  31  How. 
Pr.,  424. 

3.  Where  an  action  is  brought  by  a  receiver  appointed  in  supplementary 
proceedings,  to  reach  the  assets  of  the  judgment  debtor,  the  judgment 
creditors  are  not  liable  for  costs  to  the  defendant,  unless  it  be  shown  that 
the  action  was  brought  at  their  sole  suggestion  and  urgency,  and  Avas  vir- 
tually conducted  by  them.      The  provision  of  the  laws  of  1849,  ch.  390, — 
that  a  person  beneficially  interested  in  an  action  brought  in  the  name  of 
another,  shall  be  liable  for  the  costs, — was  not  intended  to  apply  to  actions 
brought  in  the  name  of  officers  of  the  court,  especially  where  brought  by 
leave  of  the  court.     N.  Y.  Superior  Ct.,  Sp.  T.,  1866,  Cutter  v.  Reilly,  31 
How.  Pr.,  472. 

CORPORATION:  JUDGMENT,  4. 


RECOGNIZANCE. 

When  the  acknowledgment  of  a  recognizance  is  upon  it  when  the  recogniz- 
ance is  presented  to  the  judge  who  lets  the  prisoner  to  bail,  which  ao. 
knowledgment  was  taken  before  another  judge,  the  judge  letting  to  bail 
will  be  deemed  to  have  approved  of  such  acknowledgment;  and  his  ap- 
proval of  what  has  been  done,  is  equivalent  to  a  precedent  authority. 
Supreme  Ct.,  1865,  The  People  v.  Hurlbult,  44  Barb.,  126. 
EVIDENCE,  47. 


RECORD. 
ERROR,  2. 


NEW  YORK :   1866.  549 


KEFKKENCE. 


REFERENCE. 

1.  Where  an  action  for  breach  of  covenant  to  repair  involves  the  examina- 
tion of  a  long  account,  it  may  be  referred.     N.  Y.  Com.  PL,  1805,  Hatch 
v.  Wolfe,  Ante,  77. 

2.  The  referee  has  nothing  to  do  with  the  question  of  costs  in  an  action  to 
recover  a  money  demand  on  contract.     Supreme  Ct.,  Sp.  T.,  1865,  Tilinan 
v.  Keane,  Ante,  23. 

3.  The  provision  of  section  273  of  the  Code  of  Procedure, — which  fixed  the 
tiir.e  within  which  referees  must  report, — amended  to  read  as  follows :  The 
referee  or  referees  shall  make  and  deliver  a  report  within  sixty  days  from 
the  time  the  action  shall  be  finally  submitted  ;  and  in  default  thereof,  and 
before  the  report  is  delivered,  either  party  may  serve  notice  upon  the  opposite 
party  that  he  elects  to  end  the  reference,  and  thereupon  the  action  shall  pro- 
ceed as  though  no  reference  had  been  ordered,  and  the  referees  shall  not,  in 
such  case,  be  entitled  to  any  fees.    2  Laws  of  1866,  1839,  ch.  824,  §  8. 

4.  The  report  of  a  referee  must  contain  his  findings  of  fact,  and  conclusions 
of  law,  and  no  judgment  should  be  entered  upon  the  report  before  these 
are  filed.     [28  Barb.,  462.]     If  his  report  is  general,  a  further  report  may 
be  required  by  motion.      Supreme  Ct.,  Sp.  T ,  1865,  Tilman   v.  Keane, 
Ante,  23. 

5.  Upon  an  application  under  the  act  of  1858,  to  set  aside  an  assessment  for 
local  improvement  on  the  ground  of  fraud  or  illegal  irregularity,  the 
court  are  not  authorized  to  order  a  reference.      The  statute  does  not  ex- 
pressly allow  it;  and  there  is  no  law  of  this  State  which  allows  a  judge, 
in  a  proceeding  out  of  court,  to  refer  the  case.     Supreme  Ct.,  1865,  People 
v.  Brennan,  45  Barb.,  344. 

tf.  The  practice  of  referring  motions  to  vacate  orders  of  arrest,  to  be  deter- 
mined by  referees,  is  objectionable.  Such  motion  should  be  determined 
by  the  judge,  upon  the  affidavits  presented.  Supreme  Ct.,  Sp.  T.,  1865, 
Huelet  v,  Reyns,  Ante,  27. 

7.  No  jtuhe  or  justice  to  sit  as  referee  in  his  own  court,  unless  the  parties  other- 
.    wise  stipulate.     2  Laws  of  1866,  1839,  ch.  824,  §  8  ;  amending  Code  of  Pro., 

§  273.* 

8.  The  doctrine  that  a  receiver   appointed  by  the  court  is  one  of  its  officers, 
and.  moneys  in  his  hands  being  in  the  custody  of  the  court,  no  action  can  be 
brought  against  him  to  recover  those  moneys  without  the  permission  of 
the  court,  is  applicable  by  analogy  to  referees.      Supreme  Ct.,  1864,  Hig- 
gins  v.  Wright,  43  Barb.,  461. 

9.  In  an  action  against  executors,  the  decision  of  the  judge  at  special  term, 
that  they  unreasonably  refused  an  offer  to  refer  the  claim,  and  are,  there- 
fore, liable  for  costs,  will  not  be  reviewed  as  to  the  facts, upon  an  appeal; 
and  on  awarding  costs  and  an  allowance  in  such  a  case,  after  judgment,  it 
is  proper  to  enter  the  order  nunc  pro  tune,  without  requiring  a  re-entry 
of  the  judgment.     Supreme  Ct.,  1865,  Biblo  v.  Binsse,  31  How.  Pr.,  476. 

AMENDMENT,  6:  EXCEPTIONS',  2,  3,  5. 


*  The  amendment  consists  in  adding:  the  words  in  italics. 


550  ABBOTTS'  PEACTICE   DIGEST. 

SATISFACTION   OP   PART   OF   PLAINTIFF'S   CLAIM. 

REGISTER  OF  DEEDS. 
CHATTEL  MORTGAGE,  1. 

RELIGIOUS  CORPORATIONS. 

1.  Religious  corporations  have  inherent  power  to  alien  their  property ;  and 
although  the  statute  requires  an  application  to  the  court  for  leave  to  make 
any  sale  of  their  real  property,  this  does  not  restrict  their  power  to  the 
making  of  sales  fcr  money.     The  court  may  sanction  a  conveyance  for  any 
other  purpose.      N.  Y.  Superior  Ct.,  1866,  The  Madison  Avenue  Baptist 
Church  v.  The  Baptist  Church  in  Oliver  Street,  Ante,  214 ;  reversing  S.  C., 
19  Abb.  Pr.,  105. 

2.  Two  religious  societies  may  unite  with  each  other,  and  a  conveyance  of 
the  property  of  one,  to  the  society  so  formed,  may  be  sanctioned  by  the 
court,  under  the  statute.     Ib. 

3.  Where  the  real  and  only  consideration  for  the  proposed  transfer  was  a  union 
between  two  societies,  the  terms  of  which  appeared  in  the  application  and 
order; — Held,  that  this  was  a  sufficient  statement  of  the  application  of  the 
moneys.     Ib. 

4.  In  these  proceedings  the  better  practice  is  to  negotiate  and  agree  upon  the 
terms  of  the  sale  first,  and  then  lay  the  agreement  before  the  court  for  its 
sanction.     16. 

5.  The  application  may  be  made  by  the  trustees,  if  it  be  shown  that  a  ma- 
jority of  the  corporators  approve  it.     Ib. 

6.  The  title  under  the  conveyance  is  not  affected  by  indefiniteness  of  the 
order  in  respect  to  the  application  of  the  proceeds.     Ib. 

7.  Their  application  may  be  directed  by  a  separate  order  from  that  authoriz- 
ing the  sale.     N.   Y.  Superior  Ct.,  1866,  The  Madison  Avenue  Baptist 
Church  v.  The  Baptist  Church  in  Oliver  Street,  Ante,  214 :  S.  C..  30  How. 
Pr.,  455  ;  reversing  S.  C.,  19  Abb.  Pr.,  105. 

8.  The  order  of  the  court  permitting  the  conveyance  of  real  property  by  a 
religious  corporation,  constitutes  no  estoppel  in  favor  of  a  grantee  who 
has  parted  with  nothing  as  the  consideration  for  the  deed.     Without  the 
authorization  of  the  court,  the  grant  of  the  real  estate  of  a  religious  cor- 
poration is  of  no  value,  and  the  party  injured  would   require  no  proof  in 
such  a  case  to  establish  its  invalidity.     The  order  of  the  court  gives  the 
deed  merely  regularity  of  form,  and  renders  additional  proof  necessary 
to  overthrow  it,  as  in  other  cases  where  an  objection  is  raised  to  the  valid- 
ity of  a  deed.     The  order  is  not  an  adjudication  between  the  parties,  and 
has  not  the  effect  of  res  adjudicates,.    Supreme  Ct.,  1865,  St.  James'  Church 
v.  Church  of  the  Redeemer,  45  Barb.,  356. 

SATISFACTION    OF    PART    OF    PLAINTIFF'S    CLAIM. 

The  provision  of  section  244  of  the  Code  of  Procedure,— that  when  the  an- 
swer admits  part  of  the  plaintiff*  's  claim  to  be  just,  the  court  may  order 
the  defendant  to  satisfy  that  part, — applied  in  a  peculiar  case.  Roosevelt 
v.  N.  Y.  &  Harlem  R.  R.  Co.,  45  Barb.,  554  ;  S.  C.,  30  How.  Pr.,  226. 


NEW  YORK:  1866.  551 


REPLY. 
ANSWER,  6,  7:  COUNTY  COURT,  2:  PLEADING,  14. 

SECURITY    FOR    COSTS. 

Where  the  plaintiff  had  been  absent  from  the  State  for  more  than  two  years 
on  business,  but  his  wife  and  minor  child  continued  to  reside  here ; — Held, 
that  he  was  not  such  a  non-resident  as  that  the  court  would  compel  him 
to  file  security  for  costs.  N.  Y.  Com.  PL,  1859,  Robert!  v.  Methodist 
Book  Concern,  1  Daly,  3. 

SENTENCE. 

It  is  not  necessary  that  a  sentence  to  imprisonment  in  a  State  prison  should 
specify  which  of  the  State  prisons  is  intended  ;  and  an  omission  to  do  so  is 
not  error  for  which  the  conviction  can  be  reversed.  Ct.  of  Appeals,  1865, 
Weed  v.  People,  31  N.  F.,  465. 

SERVICE  (AND  PROOF  OF). 

In  all  suitg  to  recover  for  penalties  brought  in  the  name  of  the  mayor,  alder- 
dermen,  and  commonalty  of  the  city  of  New  York,  in  the  district  courts  of 
the  city,  the  summons  may  be  served  by  any  male  person  of  the  age  of 
twenty-one  years,  who  may  be  appointed  in  writing  for  that  purpose  by  the 
corporation  attorney  of  the  city  of  New  York.  ZLaws  of  1866,  1643,  ch.  758. 

ATTORNEY  AND  CLIENT,  1 :  JUDGMENT,  8 :  NOTICE  :  SUMMARY  PROCEED- 
INGS, 9,  10. 

SESSIONS. 

1.  Court  of  general  sessions  in  New  York  city  may  continue  its  sessions  lon- 
ger than  three  weeks.    Ct.  of  Appeals,  1866,  Ferris  v.  People,  31  How.  Pr., 
140. 

2.  Record  of  conviction,  in  court  of  sessions,  for  a  criminal  offence,  must  be 
made  and  filed ;  and  fines  paid,  must  be  paid  over  to  county  treasurer 
within  thirty  days.    Neglect  to  comply,  declared  a  misdemeanor.    2  Laws 
of  1866, 1484,  ch.  692,  §  5. 

Consult  also,  COURT  OF  SESSIONS. 

SET-OFF. 

The  amount  of  damages  recoverable,  in  an  action  brought  for  a  sum  fixed  by 
agreement  as  liquidated  damages,  may  be  reduced,  by  proving  that  a  cer- 
tain portion  of  the  consideration  expressed  in  the  agreement  has  not  been 
paid.  For  such  portion  the  defendant  has  a  cause  of  action  arising  out  of 
the  same  transaction,  and  may  off-set  it  as  a  counter-claim  against  the 
plaintiff's  claim  for  damages.  N.  Y.  Com.  PL,  1865,  Baker  v.  Cornell,  1 
Daly,  469. 

COUNTER-CLAIM,  3. 


552  ABBOTTS'  PEACTICE  DIGEST. 


SPECIFIC   PERFORMANCE. 


SHERIFF. 

1.  Even  after  a  levy  by  the  sheriff,  under  a  warrant  of  attachment,  and  in- 
demnity given  to  him,  upon  his  request,  against  liability  on  proceeding  to 
sell,  he  is  at  liberty  to  return  nulla  bona,  provided  he  acts  in  good  faith. 
In  so  doing  he  assumes  the  responsibility  of  proving  property  out  of  the 
defendant  in  the  attachment,  and  thus  supporting  his  return,  but  he  is  not 
absolutely  bound  by  the  statute  to  detain  the  property  seized  in  case  the 
creditor  indemnifies  him.  Supreme  Ct.,  1864,  Lummis  r.  Kasson,  43  Barb., 
373. 

2.  The  general  rule  is  well  settled,  that  the  acts  of  a  sheriff  in  the  return  of 
process,  as  far  as  the  rights  of  the  parties  affected  thereby,  or  their  privi- 
leges are  concerned,  must  be  taken  as  true  when  brought  into  contest  col- 
laterally, and  can  only  be  impeached  by  direct  proceedings,  such  as  those 
which  make  the  officer  a  party,  or  rectified  upon  a  summary  application  to 
the  court  £o  annul  or  set  aside  the  return.      [15  East,  378  ;  4   Burrows, 
2129  ;  17  Mass.,  591 ;  4  Id.,  478  ;  9  Id.,  96  ;  10  Id.,  313 ;  11  Id.,  163  ;  15 
Id.,  82  ;  10  Pick.,  169 ;  1  Salk.,  265  ;  3  Cowen,  Hill  &  Edwards'  Notes  to 
Phill.  on  Ev.,  370  ;  Sewells'  Law  of  Sheriffs,  387  ;  3  Wend.,  202  ;  20  Id., 
301 ;  7  Id.,  398 ;  6  How.  Pr.,  297 ;  Crooke  on  Sheriffs,  $$  44,  45  ;  and  see 
also  10  Wend.,  525.]     N.  Y.  Com.  PL,  1860,  Sperling  v.  Levy,  1  Daly,  95. 

3.  It  is  no  defence  to  an  action  by  the  sheriff  against  a  deputy  and  his  surety 
on  his  bond,  for  neglecting  to  pay  over  money  collected  by  him  on  execution, 
that  no  action  was  brought  against  the  sheriff  by  the  plaintiff  in  the  exe- 
cution within  the  three  years  limited  for  such  actions  by  section  92  of  the 
Code.    It  is  a  breach  of  the  deputy's  bond  if  he  failed  to  pay  money  col- 
lected, even  if  the  sheriff'  should  never  be  sued  or  made  to  pay  the  amount. 
[3  Cowen,  313.]  The  deputy's  liability  depends  solely  upon  his  own  omis- 
sion to  pay  the  sheriff,  and  not  in  any  manner  upon  what  becomes  of  the 
money  after  the  sheriff  receives  it,  or  who  is  entitled  to  it.     Supreme  Ct., 
1864,  Willet  v.  Stewart,  43  Barb.,  98. 

CAUSE  OF  ACTION,  8:    CLAIM  AND  DELIVERY,  2:  DAMAGES,  3-5 :  EXECU- 
TION, 2. 

SHIPPINGS 

1.  The  justices  of  the  superior  court  of  the  city  of  New  York  have  power  to 
issue  attachments  against  vessels,  under  the  act  of  1862.    N.  Y.  Superior 
Ct.,  1866,  Delaney  v.  Brett,  Ante,  421. 

2.  On  an  application  for  an  attachment  under  that  act,  a  specification  of  the 
debt  need  not  be  filed,  unless  the  vessel  has  left  the  port  where  the  debt 
was  contracted.    Ib. 

SPECIFIC  PERFORMANCE. 

1.  That  specific  performance  of  an  agreement  to  transfer  stock,  may  be  de- 
creed, where  the  contract  to  convey  is  clear,  and  the  uncertain  value  of 


NEW  YOKE:  1866.  553 


STAY   OF   PROCEEDINGS. 


the  stock  renders  it  difficult  to  do  justice  by  an  award  of  damages.     Su- 
preme Ct.,  1865,  White  v.  Schuyler,  Ante,  300. 

2.  A  contract  to  pay  money  in  gold  and  silver,  cannot  be   specifically  en- 
forced, nor  can  any  other  damages  be  recovered,  upon  its  breach,  except 
interest.     N.  Y.  Superior  Cl.,  1866,  Wilson  v.  Morgan,  Ante,  174. 

3.  In  what  cases  a  party  may  maintain  an  action,  to  compel  specific  per- 
formance of  a  contract  to  furnish  facilities  for  transportation.      Pennsyl- 
vania Coal  Company  v.  Delaware  and  Hudson  Canal  Company,  31  N. 
Y.,  91. 

4.  Where  a  valid  contract  has  been  entered  into  for  the  renewal  of  a  lease, 
by  which  it  is  provided  that  the  amount  of  rent  to  be  paid  shall  be  settled 
by  arbitration,  and  either  party  refuses  to  appoint  an  arbitrator,  a  court 
of  equity  will  compel  a  specific  performance,  and  order  a  reference  to  as- 
certain what  the  amount  of  rent  should  be.      The  court  can,  by  taking 
proof,  ascertain  and  fix  it  with  as  much  certainty  as  the  arbitrators  could 
do;  and  if  the  mode  of  determining  it  by  arbitration  cannot  be  resorted 
to  through  the  refusal  of  one  of  the  parties  to  appoint  an  arbitrator,  thero 
is  no  reason  why  the  other  party  should  lose  the  benefit  of  a  contract  in 
all  other  respects  valid  and  binding,  when  the  court  has  the  means  of  fix- 
ing such  a  mere  matter  of  detail.      [18  Ves.,  328;  19  Id.,  430;  14  Abb., 
195.]     N.  Y.  Com.  PL,  1805,  Kelso  v.  Kelly,  1  Daly,  419. 

STAMPS. 

Process  on  appeals  from  justices'  courts,  or  other  courts  of  inferior  jurisdic- 
tion, to  a  court  of  record,  which,  by  the  internal  revenue  law,  are  required 
to  be  stamped,  are  not  void  if  not  stamped.  Congress  have  not  constitu- 
tional power  to  take  away  the  jurisdiction  of  a  State  court.  Chenango 
County  Ct.,  1866,  Lewis  v.  Randall,  Ante,  135. 
JUSTICES'  COURTS,  11. 

STATUTES. 

Under  our  system  of  government,  the  moral,  religious,  and  economic  inter- 
ests of  society  are  beyond  the  sphere  of  legislative  action.  The  exercise 
by  the  legislature  of  a  control  over  the  terms  of  contracts  was  never  con- 
templated by  the  framers  of  the  constitution,  and  is  nugatory.  Supreme 
Ct.,  Sp.  T.,  1865,  Powers  v.  Shepard,  Ante,  129. 

STAY  OF    PROCEEDINGS. 

On  an  appeal  from  a  single  judge  of  the  marine  court  to  the  general  term  of 
that  court,  if  a  stay  of  proceedings  is  wanted,  security  must  be  given  as 
on  a  similar  appeal  in  one  of  the  superior  courts;  and  an  undertaking 
given  for  that  purpose  is  valid.  Ct.  of  Appeals,  1865,  Robert  v.  Donnell, 
31  N.  r.,446;S.  C.,  Ante,  4. 


554:  ABBOTTS'    PRACTICE   DIGEST. 


SDMMAKT   PROCEEDINGS 


SUMMARY  PROCEEDINGS. 

1.  Summary  proceedings  under  the  statute,  to  recover  the  possession  of  land, 
cannot  be  sustained  unless  the  conventional  relation  of  landlord  and  ten- 
ant exists  between  the  parties.      [5  N.  Y.  383.J      Supreme  Ct.,  18C6,  Peo- 
ple v.  Annis,  45  Barb.,  304. 

2.  An  agreement,  employing  a  person  to  work  upon  a  farm,  and  give  him  a 
house  to  live  in,  a  garden  and  pasture,  is  not  a  demise  of  premises,  in  the 
nature  of  a  lease,  creating  the  relation  of  landlord  and  tenant,  which 
•will  sustain  summary  proceedings  to  dispossess  the  employee.     [3  Hill, 
90.]     Ib. 

3.  Where  a  lessee,  having  been  notified  that  the  lessor  had  appointed  an  ar- 
bitrator under  a  covenant  for  a  renewal,  and  being  required  to  appoint 
one  on  his  own  behalf,  before  the  expiration  of  the  lease,  fails  to  do  so,  he 
does,  at  the  option  of  the  lessor,  waive  his  right  to  such  renewal ;  and  if, 
after  the  landlord  gives  him  subsequently  notice  that  he  should  require 
him  to  pay  a  specified  rent,  he  holds  over,  it  may  be  regarded  as  a  new 
letting  from  year  to  year,  and  not  a  renewal  of  the  former  lease.      And 
the  tenant  in  such  case  may  be  dispossessed  by  summary  proceedings  as 
on  non-payment  of  rent.     N.  Y.  Com.  PL,  1860,  Wells   v.   De   Leyer,   1 
Daly,  39. 

4.  A  demand  of  the  rent  claimed  to  be  due,  made  of  an  under-tenant,  who  is 
described  in  the  affidavit  merely  as  a  person  in  possession  of  the  demised 
premises,  is  not  sufficient  to  give  the  justice  jurisdiction.      The   demand 
must  be  made  of  the  tenant,  or  three  days'  notice  requiring  payment  or 
the  possession  of  the  premises,  must  be  served  in  the  manner  specified  in 
the  statute  for  the  service  of  the  summons.      Supreme  Ct.,  1864,  People  v. 
Plait,  43  Barb.,  116. 

5.  The  preliminary  affidavit,  which  is  the  foundation  of  the  "  summary  pro- 
ceedings to  recover  the  possession  of  lands,"  should  not  be  uncertain  or 
contradictory.    [16  Barb.,  474.]    The  affidavit  should  make  out  a  plain  case. 
[6  Hill,  317.]     Supreme  Ct.,  1864,  People  v.  MathewP,  43  Barb.,  168. 

6.  A  summons  issued  under  2  Rev.  Stat.,  513,  $  30,  as  amended  Laws  of  1851, 
ch.  60,  in  summary  proceedings  against  a  tenant  for  holding  over  after  the 
expiration  of  his  term,  may  be  made  returnable  on  any  day  from  the  first 
to  the  fifth,  as  may  "  appear  reasonable  "  to  the  magistrate.    Ulster  Co.  Ct., 
1865,  Russel  v.  Ostrander,  30  How.  Pr.,  93. 

7.  The  history  of  the  legislation  upon  this  subject  reviewed.     Ib. 

8.  Summons  ngainst  person  continuing  in  possession  of  demised  premises  in 
New  York  and  Kinus  counties,  not  to  be  returnable  before  the  day  following 
its  service,  except  when  said  term  expires  on  the  first  day  of  May,  in  which 
case  the  summons  may  be  returnable  on  the  same  day.     2  Laws  of  1866, 
1636,  ch.  754. 

9.  An  affidavit  of  the  service  of  the  summons,  which  states  that  the  service 
was  made  by  "  leaving  a  true  copy  of  the  same  with  a  person  who  said  he 
belonged  there,  at  his  last  or  usual  place  of  residence,  with  a  person  of 
mature  age,  who,  at  the  time  of  said  service  was  on  said  premises,  and  re- 
sided thereon,  said  tenant  being  then  absent  from  his  last  and  usual  place 
of  business," — is  defective,  as  not  showing  that  the  copy  was  left  with  a 


NEW  YOEK  :  1866.  555 


person  of  mature  age  at  the  last  or  usual  place  of  residence  of  the  tenant. 
[1  Hill,  512.]     Supreme  Ct.,  1864,  People  v.  Mathows,  43  Barb.,  168. 

10.  A.n  affidavit  of  the  service  of  a  summons,  under  the  statute  relative  to 
"  summary  proceedings  to  recover  the  possession  of  land,'1  which  alleges 
a  service  upon  an  under-tenant,  on  the  demised  premises,  and  that  the  ten- 
ant was  absent  from  his  last  and  usual  place  of  residence :  without  stating 
that  such  residence  was  upon  the  demised  premises,  is  insufficient  to  give 
jurisdiction.     Supreme  Ct.,  1864,  People  v.  Platt,  43  Barb.,  116. 

11.  Proceedings  to  dispossess  under  the  statute  cannct  be  reversed  on  certio- 
rari  brought  by  one  who  was  not  a  party  to  the  proceedings,  although  dis- 
possessed under  the  warrant,  where,  by  the  record,  the  proceedings  ap 
pear  to  have  been  regular,  and  the  only  grounds  of  irregularity  appear  by 
extrinsic  facts  alleged  in  his  affidavit  on  the  application  for  the  certiorari. 
Supreme  Ct.,  1865,  Starkweather  v.  Seeley,  45  Barb.,  164. 

FORMER  ADJUDICATION,  7. 

SUMMONS. 

1.  An  action  against  the  sureties  in  an  undertaking  given  pursuant  to  sec- 
tion 209  of  the  Code  of  Procedure,  in  an  action  of  claim  and  delivery  of 
personal  property,  conditioned  for  a  return  of  the  property,  if  a  return 
should  be  adjudged,  and  for  the  payment  of  such  sum  as  should,  for  any 
cause,  be  recovered  against  the  plaintiff  in  the  action,  ia  substantially  one 
for  the  payment  of  money  ;  and  a  summons  for  a  money  demand,  in  such 
an  action,  is  proper.      N.   Y.   Com.  PL,   1860,  Montegriffo    v.   Musti,  1 
Daly,  77. 

2.  The  omission  to  serve  a  copy  of  the  complaint  together  Avith  the  summons, 
where  the  summons  is  in  the  form  appropriate  for  serving  both  together, 
and  to  state  in  the  summons  the  place  of  filing  the  complaint,  does  not  affect 
the  validity  of  the  judgment  entered  thereon.   It  is  amendable.   N.  Y.  Com. 
PL,  1866,  Foster  v.  Wood,  Ante,  150. 

3.  Where  the  action  is  against  joint  debtors,  a  part  of  whom  only  are  served, 
such  defect  in  the  summons  is  no  reason  for  dismissing  proceedings  to  en- 
force the  judgment  agaimst  those  not  served.     Ib.  . 

4.  It  is  too  late  at  the  trial  to  object  that  the  complaint  and  summons  vary; 
that  the  summons  was  under  the  wrong  subdivision  of  section  129  of  the 
Code  of  Procedure,  to  justify  the  complaint  under  it.      That  objection 
should  be  presented  by  motion,  in  order  that  an  amendment  might  be  made 
on  just  terms.     If  necessary  to  sustain  the  judgment,  the  summons  may  bo 
amended  on  appeal  from  the  judgment,  so  as  to  conform  to  the  facts  proved. 
Supreme  Ct.,  1864,  Willet  v.  Stewart,  43  Barb.,  98. 

JOINT  DEBTORS  :  JUDGMENT,  10  :  MARINE  COURT,  1 :  SERVICE  (AND  PROOF 
OF)  :  SUMMARY  PROCEEDINGS,  6,  8. 

SUPPLEMENTAL  PLEADING. 

Either  party  may,  by  leave  of  the  court  in  any  pending  or  future  action,  set 
up,  by  supplemental  pleading,  the  judgment,  or  decree  of  any  court  of  com- 


556  ABBOTTS'  PRACTICE  DIGEST. 


SUEROOATES'   COURTS. 


petent  jurisdiction  rendered  since  the  commencement  of  such  action,  deter- 
mining the  matters  in  controversy  in  said  action,  or  any  part  thereof,  and  if 
said  judgment  be  set  up  by  the  plaintiff,  the  same  shall  be  without  prejudice 
to  any  provisional  remedy  theretofore  issued,  or  other  proceedings  had  in  such 
action,  on  his  behalf.  2  Laws  of  1866,  1838,  ch.  824,  §  6  ;  amending  Code  of 
Pro.,  §  177. 

SUPPLEMENTAL  PROCEEDINGS. 

1.  The  affidavit  to  procure  the  examination  of  a  third  person  in  proceedings 
supplementary  to  execution,  under  section  294  of  the  Code  of  Procedure, 
need  not  state  that  the  property  of  the  judgment  debtor  in  his  hands  ex- 
ceeds ten  dollars.      The  limitation  cf  ten  dollars  applies  only  where  the 
affidavit  states  that  such  person  is  indebted  to  the  judgment  debtor.    N.  Y. 
Supreme  Ct.,  Chambers,  1865,  Brett  v.  Browne,  Ante,  155. 

2.  An  order  made  in  proceedings  supplementary  to  execution,  directing  the 
payment  to  the  creditor  of  money  in  the  hands  of  a  third  person,  will  not 
affect  the  rights  of  an  assignee  who  has  advanced  money  on  the  faith  and 
security  of  the  fund  in  good  faith,  and  who  is  not  a  party  to  the  supple- 
mental proceedings.     The  Code  of  Procedure  does  not  contemplate  the  ad- 
judication of  the  rights  of  the  assignees  by  the  judge,  in  so  summary  a 
manner.     When  the  fact  of  the  assignment  of  a  fund  hi  the  hands  of  a  de- 
positary, by  the  owner,  is  made  known  to  the  judge,  he  ought  not  to  order 
it  to  be  paid  over  to  the  judgment  creditor,  and  an  order  requiring  such 
payment  is  void  as  against  the  assignee.      Supreme  Ct.,  1864,  Hoy  v. 
Buucus,  43£ar&.,  310. 

3.  A  notice  to  attend  before  a  referee  to  be  examined  in  supplementary  pro- 
ceedings, which  omitted  to  state  the  place  where  the  debtor  should  attend; 
— Held,  fatally  defective.      N.  Y.  Com.  PL,  Sp.  T.,  1866,  Kelly  v.  Yerby, 
31  How.  Pr.,  95. 

KECEIVER,  2,  3. 

SURPLUS  MONEYS. 
FORECLOSURE,  3. 

SURROGATES'  COURTS. 

1.  Under  the  power  conferred  upon  the  surrogate  by  2  Rev.  Stat.,  220, — to 
direct  and  control  the  conduct,  and  settle  the  accounts  of  executors  and  ad- 
ministrators,— to  enforce  the  payment  of  debts  and  legacies,  and  to  admin- 
ister justice  in  all  matters  relating  to  the  affairs  of  deceased  persons, — he 
has  ample  authority  to  compel  executors  to  perform  their  duty  by  expend- 
ing, for  the  benefit  of  infant  legatees,  the  interest  of  a  sum  of  money  in- 
trusted to  them  for  that  purpose,  by  the  testator.  Although  the  executors 
might  be  made  liable  in  an  equitable  action  instituted  in  the  supreme 
court  for  that  purpose,  yet  it  by  no  means  follows  that  the  surrogate  is 
deprived  of  jurisdiction.  The  powers  of  the  surrogate,  as  defined  by  stat- 
ute, are  not  intended  to  exclude  such  cases.  Supreme  Ct.,  1864,  Dubois  «, 
Sands,  43  Barb.,  412. 


YORK  :  1866.  557 


2.  It  is  no  objection  to  the  decree  of  a  surrogate  that  it  required  interest  to 
be  paid  up  to  the  date  of  the  decree.      Nor  is  it  of  any  consequence  that 
the  decree  does  not  provide  for  commissions  to  the  executors,  if  not  claimed 
on  the  hearing.     These  can  be  allowed  upon  a  final  accounting.     Supreme 
Ct.,  1864,  Dubois  v.  Sands,  43  Barb.,  412. 

3.  Provisions  for  the  completion  of  unfinished  business  in  the  office  of  the  sur- 
rogate of  Onondfiga  county.    1  Laws  of  1806,  23,  ch.  6. 

4.  On  appeal  to  the  supreme  court  from  a  decree  of  a  surrogate  denying  pro- 
bate of  an  instrument  propounded  as  a  will,  the  court,  if  it  deems  the  de- 
cree against  the  evidence,  is  not  bound  to  award  a  feigned  issue  to  try  the 
questions  of  fact,  but  may  direct  such  judgment  and  decree  to  be  entered 
as  the  surrogate  should  have  made.      There  is  no  statute  limiting  the 
powers  of  the  supreme  court  in  regard  to  the  disposition  of  such  appeals, 
and  the  court  has,  by  express  provision,  all  the  powers  and  jurisdiction 
possessed  by  the  former  court  of  chancery  [Const.,  art.  0  ;  Judiciary  act» 
1847,  §  16] ;  which  had  authority,  on  appeal,  to  declare  a  paper  valid  or 
invalid  as  a  will,  and  to  adjudge  that  it  be  admitted  to  or  refused  probate. 
That  court  possessed  this  power  by  virtue  of  its  general  jurisdiction.     [26 
Wend.,  318,  et  seq.;  S  Paige,  502;  10  Id.,  85;  11  Barb.,  661;  22  N.  Y., 
420 ;  22  Barb.,  84,  85 ;  2  Bradf.,  181.]      Supreme  Ct.,  1865,  Pilling  «.  Pil- 
ling, 45  Barb.,  86. 

5.  The  supreme  court,  on  appeal  from  the  surrogate,  will  not  determine,  for 
the  first  time,  a  question  of  fact  which  was  not  examined  and  determined 
below,  but  was  assumed  for  the  purpose  of  the  decision  of  other  points  ; 
but  if  such  question  is  material  to  the  other  questions  raised  on  the  ap- 
peal, the  court  may  examine  it,  for  the  purpose  of  seeing  what  probability 
there  is  of  the  appellants  sustaining  the  point  on  a  re-trial.     Supreme  Ct., 
1866,  Christy  v.  Clarke,  45  Barb.,  529. 

6.  Upon  an  appeal  to  the  supreme  court  from  a  surrogate's  court,  the  suc- 
cessful party  is  not  entitled  to  costs,  as  in  a  civil  action,  at  the  rates  fixed 
by  section  307  of  the  Code  of  Procedure,  but  only  the  costs  of  trial  of  an 
issue  of  law.     Supreme  Ct.,  1865,  Morgan  v.  Morgan,  Ante,  40. 

'{.  The  fees  of  surrogates'  courts  regulated.  Laws  of  1863,  ch.  362,  as  amended 
by  2  iawjs  o/1866, 1683,  ch.  784. 

TAXES. 

Under  the  law  relative  to  the  assessment  of  taxes  (Laws  of  1851;  334,  ch. 
176), — which  takes  away  the  conclusiveness  of  the  affidavit,  and  makes  it 
the  duty  of  the  assessors,  when  an  application  is  made  by  any  person  to 
reduce  the  value  of  his  real  and  personal  estate,  to  examine  such  person 
under  oath  touching  the  value  of  his  property,  and  after  such  examination 
to  fix  the  value  thereof  as  they  may  deem  just, — the  assessors  act  judi- 
cially in  fixing  the  value,  and  are  called  upon  to  pass  upon  the  evidence 
produced  before  them ;  and  when  they  have  no  ground  in  such  evidence  to 
fix  a  valuation  different  from  that  sworn  to  by  the  person  applying  for 
such  reduction,  they  are  bound  to  take  and  follow  his  statement  under 
oath.  The  assessors  must  act  upon  the  evidence  before  them,  like  all  other 


558  ABBOTTS'   PRACTICE  DIGEST. 


officers  acting  in  a  judicial  capacity,  and  fix  the  valuation  at  a  just  sum, 
such  as  will  be  warranted  by  the  evidence.  Supreme  Ct.,  1864,  People  v. 
Reddy,  43  Barb.,  539. 

CERTIORARI,  2-6,  8,  9 :  MANDAMUS,  5,  6  :  PARTIES,  13. 

TIME. 

It  is  a  general  rule,  where  two  periods  are  fixed  within  which  an  act  may 
be  done,  that  it  may  be  done  on  any  intervening  day,  unless  some  day  be 
expressly  excluded.  Ulster  Co.  Ct.,  1865,  Kussell  v.  Ostrander,  30  How. 
Pr.,  93. 

TRIAL. 

1.  When,  in  the  first  judicial  district,  a  cause  is  noticed  for  trial,  it  must  be 
put  upon  the  calendar  for  the  term  for  which  it  is  noticed.     A  cause  not 
upon  the  calendar  cannot  be  moved  on  for  trial,  and  a  party  not  finding 
the  cause  on  the  calendar  of  the  term  for  which  he  had  received  notice  of 
trial,  is  not  bound  to  examine,  from  term  to  term  thereafter,  to  ascertain 
if  the  cause  is  in  a  condition  to  be  called  up  for  trial.     N.  Y.  Superior  Ct., 
1866,  Culver  v.  Felt,  30  How.  Pr.,  442. 

2.  Formerly  a  notice  of  trial  and  a  note  of  issue  were  both  required  for  each 
term  of  the  court :  the  alteration  in  that  respect  in  the  first  judicial  dis- 
trict merely  requires  one  notice,  and  one  note  of  issue,  but  does  not  relieve 
parties  from  the  necessity  of  placing  their  cause  upon  the  calendar  until 
such  time  as  it  was  likely  to  be  reached,  and  compel  the    adversary,  at 
the  peril  of  being  defaulted,  to  examine  daily  the  calendars  of  the  court. 
16. 

3.  In  the  settlement  of  issues  in  a  divorce  case,  an  issue  whether  the  party 
was  guilty  of  adultery  with  a  specified  person,  at  any  time  before  the  com- 
mencement of  the  action,  should  not  be  allowed.     Some  limits  of  time  and 
place  must  be  indicated.     N.   Y.  Superior  Ct.,  1865,  Strong  v.   Strong, 
Ante,  233. 

4.  But  issues  actually  made  in  the  pleadings,  and  inserted  accordingly,  with- 
out objection,  in  the  issues  as  framed  for  trial,  will  not  be  expunged  on 
motion,  on  the  mere  ground  of  indefiniteness  as  to  time  and  place.    Ib. 

5.  The  judge  has  power  to  excuse  jurors  without  cause,  who  have  been  em- 
pannelled  for  a  term.     Supreme  Ct.,  1865,  People  v.  Ferris,  Ante,   193  ; 
affirmed  31  How.  Pr.,  140. 

6.  The  judge  at  the  circuit  may  in  all  cases,  in  his  discretion,  with  or  with- 
out the  consent  of  the  parties,  allow  the  jury  to  take  to  their  room  any 
written  documents  or  papers  received  and  used  in  evidence  on  the  trial  of 
a  cause.     Supreme  Ct.,  1865,  Porter  v.  Mount,  45  Barb.,  422. 

7.  Where  the  plaintiff  in  his  complaint  united  a  cause  of  action  (equitable) 
for  the  redemption  of  a  pledge,  with  a  cause  of  action  (legal)  for  damages 
for  the  conversion  of  it ;  and  the  proofs  on  trial  at  special  term  showed 
that  he  was  not  entitled  to  the  equitable  relief  prayed,  and  the  statute  of 
limitations  would  bar  a  new  action  for  damages  ; — Held,  that  instead  of 


NEW  YORK:   1866.  559 


dismissing  the  complaint,  the  court  should  deny  the  equitable  relief  asked, 
and  direct  the  case  to  be  tried  as  an  action  at  law  before  a  jury.  Supreme 
Cl.,  Sp.  T.,  1866,  Genet  v.  Rowland,  45  Barb.,  560  ;  S.  C.,  30  How.  PA, 
360. 

8.  A  request  to  charge  the  jury  should  be  made  in  such  form  that  the  court 
may  charge  in  the  very  terms  of  the  request,  without  qualification.     [11 
N.  Y.,  61.]      The  judge   is  not   required  to  separate  a  proposition  of 
counsel,  and  pick  out  what  is  good,  and  refuse  the  rest.     [2-1  How.  Pr., 
172.]     Supreme  Ct.,  1864,  Newman  v.  Cordell,  43  Barb.,  448. 

9.  It  is  a  matter  of  discretion  for  the  judge  to  exclude  a  question  on  the 
ground  that  it  has  already  been  answered  in  effect ;  and  as  such,  the  ex- 
clusion is  not  reviewable  on  appeal.    N.    Y.  Com.  PI.,  1861,  Bnllard  v. 
Lockwood,  1  Daly,  158. 

10.  Where  it  is  the  purpose  of  counsel  to  render  evidence,  apparently  irrel- 
evant, material,  by  connecting  other  facts  with  it,  it  is  his  duty  to  state  the 
proposition  which  he  proposes  to  establish,  or  the  fact  which  he  expects 
to  prove,  SQ  that  the  judge  may  see  its  bearing,  and  determine  as  to  its 
materiality.    Where  counsel,  instead  of  pursuing  that  course,  simply  ex- 
cepts  to  a  decision  overruling  a  question,  which,  upon  its  face,  has  nothing 
to  do  with  its  merits,  the  exception  will  not  be  sustained.     Ct.  of  Appeals 
1865,  Chapman  v.  Brooks,  31  N.  Y.,  75. 

11.  In  answer  to  a  question  whether  A.  was  able  to  pay  his  debts  at  a  cer- 
tain time; — Held,  that  facts  respecting  the  property  and  indebtedness  of 
the  person  might  be  stated  as  well  as  the  opinion  of  the  witness.  Supreme 
Ct.,  I860,  Thompson  v.  Hall,  45  Barb.,  214. 

12.  Whether  or  not  a  leading  question  may  be  put  to  a  witness,  is  a  matter 
of  discretion  with  the  judge  at  the  trial.      Supreme  Ct.,  1865,  Black  v. 
Camden  &  Amboy  R.  R,  Co.,  45  Barb.,  40. 

13.  An  offer  to  show  that  the  the  witness  had  been  convicted  and  impris- 
oned for  gross  intoxication  on  a  certain  day ; — Held,  properly  excluded,  as 
it  was  an  effort  to  impeach  a  witness  by  proof  of  a  particular  offence. 
N.  Y.  Com.  PL,  1860,  Greaton  v.  Smith,*  1  Daly,  380. 

14.  That  an  offer  by  defendant  to  show  that  one  of  several  plaintiffs  has 
assigned  his  interest  in  the  cause  of  action,  is  properly  excluded.      Boyce 
v.  Brockway,  31  N.  Y.,  492. 

15.  In  an  action  against  a  railroad  company  for  injuries  to  the  plaintiff  by  a 
train  at  a  crossing,  it  is  proper  to  charge  that  though  the  company  were 
under  no  obligation  to  keep  a  flagman  at  a  road  crossing,  yet  if  it  had  been 
for  a  long  time  accustomed  to  keep  a  flagman  there,  and  the  public  were 
accustomed  to  see  him  there,  they  would  have  the  right  to  suppose  that 
no  trains  were  coming  when  he  was  not  out ;  and  to  refuse  to  charge  that 
the  rights  of  a  citizen  to  the  highway,  at  a  railroad  crossing,  are  subser- 
vient to  the  rights  of  the  corporation.     Supreme  Ct.,  1866.     Warner  v. 
New  York  Central  R.  R.  Co.,  45  Barb.,  299. 

16.  Whether  a  name  in  the  list  of  creditors,  variant  from  that  of  the  plain- 
tiffs', was  intended  to  designate  them,  or  whether  their  names  were 

*  Affirmed,  33  N.  T.,  245. 


560  ABBOTTS'  PRACTICE  DIGEST. 


omitted,  and  if  so,  whether  the  omission  was  fraudulent; — Held,  iu  this 
case  properly  submitted  to  the  jury.  Soule  v.  Chase,  Ante,  48. 
16.  "Where  the  judge  charged  the  jury  that  the  defendants  were  estopped 
from  setting  up  and  relying  upon  their  title  to  the  premises  as  a  defence 
to  the  action; — Held,  that  under  this  charge  the  jury  were  not  at  liberty 
to  consider  the  question  of  estoppel  as  a  question  of  fact,  but  were  bound 
to  consider  the  case  on  the  assumption  that  as  matters  of  law  the  defen- 
dants were  estopped  from  asserting  title  to  the  premises,  and  that  in 
this  respect  the  court  erred  in  its  charge.  That  the  question  belonged  to 
the  jury,  and  should  have  been  submitted  to  them  as  a  question  of  fact. 
Ct.  of  Appeals,  1864,  Brown  v.  Bowen,  30  N.  Y..  519. 

18.  In  an  action  against  bankers  for  negligence  in  the  protest  of  a  note,  the 
charge  respecting  the  amount  of  damages  should  have  reference,   not  to 
the  amount  which.the  plaintiffs  might  have  collected  of  the  endorser,  with 
reference  to  his  character,  but  with  reference  to  his  pecuniary  ability.    Su- 
preme Ct.,  1865,  Bridge  v.  Mason,  45  Barb.,  37. 

19.  Where  a  jury  are  instructed,  in  a  case  of  negligence,  to  award  the  dam- 
ages the  plaintiff  has  sustained,  the  court  may  leave  to   thtm   to  say 
whether  on  such  damages  the  plaintiff  is  entitled  to   interest.     [6   Den., 
55  ;  5  Bosw.,  625.]     But  it  is  erroneous  to  instruct  them,  as  a  matter  of 
law,  that  the  plaintiff  is  entitled  to  recover  interest,  on  the  damages.     Su- 
preme Ct.,  1865,  Black  v.  Camden  &  Amboy  R.  R.  Co.,  45  Barb.,  40. 

20.  "Where  the  complaint  was  not  given  in  evidence,  and  the  plaintiff  was 
not  asked  any  questions  in  relation  to  its  contents  • — Held,  that  the  judge 
.properly  refused    to  charge  the  jury  that  the  discrepancy  between  the 
plaintiff's  sworn  complaint,  and  the  testimony,  might  be  taken  into  con- 
sideration in  considering  his  credibility.     N.  Y.  Com.  PL,  18C1,  Fash  v. 
Third  Avenue  R.  R.  Co.,  1  Daly,  148. 

21.  It  is  the  intendment  of  law  that  a  verdict  settles,  in  favor  of  the  prevail- 
ing party,  every  question  of  fact  litigated  upon  the  trial.     The  court  will 
not  intend  that  the  jury  found  either  of  the  issues  in  favor  of  the  unsuc- 
cessful party,  for  the  purpose  of  overturning  their  verdict,  but  will  hold 
that  every  issue  was  found  against  the  unsuccessful  party,  if  necessary  to 
sustain  the  verdict.     If  the  jury  gave  the  plaintiff  less  than  he  was  enti- 
tled to  recover,  upon  the  finding  of  the  issues,  that  is  an  error  of  which 
the  plaintiff  alone  complain.     If  he  submits  to  the  verdict,  the  defendants 
cannot  be  heard  to  insist  that  it  shall  be  set  aside  because  it  is  unjust  to 
the  plaintiff.  Supreme  Ct.,  1864,  Wolf  v.  Goodhue  Fire  Ins.  Co.,  43  Barb., 
400. 

22.  In  an  action  against  husband  and  wife  to  recover  the  usurious  excess  of 
interest,  where  the  defendants  defended  separately,  a  verdict  against  one 
only,  with  no  reference  to  the  other  defendant,  is  a  mistrial,  and  no  judg- 
ment can  be  entered  upon  it.     The  verdict  cannot  be  sustained  by  allow- 
ing the  plaintiff  to  amend  the  complaint  by   inserting  in  it  the  proper 
statements,  alleging  that  the  defendants  are  husband  and  wife,  so  that  the 
verdict  may  stand,  retaining  the  former's  name  in  the  record  as  husband, 
but  without  any  judgment  against  him.    But  the  plaintiff  may  be  allowed 


NEW  YORK:   1866.  561 


TRDSTKES. 


to  dismiss  the  complaint,  and  discontinued  the  action  against  the  husband 
to  the  same  effect  as  if  a  verdict  had  been  found  in  his  favor  at  the  circuit, 
and  enter  judgment  on  the  verdict  against  the  wife,  if  justice  requires  it. 
Supreme  Ct.,  1865,  Porter  v.  Mount,  45  Barb.,  422. 

23.  The  expression  of  an  opinion  by  the  sheriff,  as  to  the  guilt  or  innocence 
of  the  prisoner,  is  not  sufficient  cause  of  challenge  to  the  array,  unless  he 
does  some  act,  or  omits  some  duty,  by  reason  of  which  some  juror  called 
upon  to  try  the  case  is  disqualified.  Supreme  Ct,,  1865,  People  v.  Ferris, 
Ante,  193  ;  affirmed,  31  How.  Pr.,  140. 

25.  Where  the  complaint  contains  several  causes  of  action,  and  the  court, 
upon  the  trial,  nonsuit  the  plaintiff'  as  to  one,  and  continue  the  case  as  to 
the  other  (a  course  which  is  of  doubtful  propriety),  evidence  which  has 
been  given  under  the  one  issue  tending  to  show  fraud  in  the  defendant,  is 
not  necessarily  to  be  excluded  from  the  consideration  of  the  jury  in  deter- 
mining the  question  of  fraud  under  the  other  issue.  It  is  in  the  discretion 
of  the  judge  to  allow  such  evidence  to  be  commented  on  by  counsel.  A 
charge  to  the  jury  that  they  may  consider  this  evidence,  is  not  ground  for 
reversing  the  judgment  upon  a  bill  of  exceptions.  The  remedy,  if  any,  is 
by  a  motion  for  a  new  trial.  Supreme  Ct.,  1855,  Meyer  v.  Goedel,  31  How. 
Pr.,  456. 

25.  In  an  action  by  the  general  assignee  of  a  debtor,  to  recover  for  goods 
wrongfully  taken  from  the  debtor,  and,  while  in  the  wrongdoer's  posses- 
sion, seized  on  attachments  against  the  debtor,  and  sold  under  them  at  a 
sacrifice,  the  measure  of  damages  is  the  true  value  of  the  goods,  less  the 
amount  realized  at  the  sale.     Supreme  Ct.,  18C6,  Ward  v.  Benson,  31  How. 
Pr.,  411. 

26.  Irregularities  in  drawing  a  panel  of  jurors,  which  appeared  not  to  have 
prejudiced  the  prisoner; — Held,  no  ground  for  reversing  conviction  bad 
in  the  New  York  court  of  general  sessions.      Ct.  of  Appeals,  1866,  Ferris 
v.  People,  31  How.  Pr.,  140. 

27.  That  sanity  is  presumed,  and  it  is  never  incumbent  on  the  prosecution,  in 
a  criminal  case,  to  give  affirmative  evidence  that  the  accused  was  sane.  Ct. 
of  Appeals,  1866,  Ferris  v.  People,  31  How.  Pr.,  140. 

AMENDMENT:  DAMAGES,!:  DISMISSAL  OF  COMPLAINT,  1 :  DISTRICT  COURTS 
OF  THE  CITY  OF  NEW  YORK,  3-5:  EVIDENCE:  EXCEPTIONS:  INDICTMENT, 
3,4:  JURORS:  JUSTICES'  COURTS:  NONSUIT:  PARTIES,  21:  QUESTIONS 
OF  LAW  AND  FACT :  REFERENCE:  SUMMONS,  4:  VARIANCE:  WITNESS. 

TRUSTEES. 

The  provision  of  2  Rev.  Stat.,  94,  §  66, — which  authorizes  testamentary  trustees, 
&c.,to  settle  their  accounts  before  the  surrogate, — amended  by  adding  a  pro- 
vision that  on  all  such  accountings  of  such  trustees,  the  surrogate  before  whom 
such  accounting  may  be  had,  shall  allow  to  the  trustee,  or  trustees,  the  same 
compensation  for  his  or  their  services,  by  way  of  commissions,  as  are  al- 
lowed by  law  to  executors  and  administrators,  and  also  such  allowance  for 
expenses  as  shall  be  just  and  reasonable,  and  if  there  be  more  than  one 
trustee,  and  the  estate  be  insufficient  to  give  full  commissions  to  each 
trustee,  said  surrogate  shall  apportion  such  compensation  and  allowance 
among  said  trustees,  according  to  the  services  rende-red  by  them  respec- 
tively. 1  Laws  of  1866,  233,  ch.  115. 

N.  S.— YOL.  I.— 36. 


562  ABBOTTS'  PKACTICE  DIGEST. 


UNDERTAKINGS. 

1.  In  an  action  upon  an  undertaking,  given  under  section  356  of  the  Code,  to 
obtain  a  stay  of  execution,  after  an  appeal  and  affirmance,  it  is  not  proper 
to  inquire  at  the  trial  whether  or  not  the  appeal  had  been  perfected  by 
the  filing  of  the  undertaking  required  by  section  354  of  the  Code.      It  ia 
enough  that  the  instrument  sued  on  corforms  to  the  statute.    N.  Y.  Com. 
PI.,  1860,  Sperling  v.  Levy,  1  Daly,  95. 

2.  It  is  sufficient  to  establish  the  plaintiff's  right  to  recover,  to  prove  the  un- 
dertaking entered  into  by  the  defendants,  the  rendition  of  the  judgment 
therein  referred  to,  and  the  sheriff's  return  of  the  execution  issued  upon 
the  judgment,  unsatisfied.    It  is  no  defence  that  the  execution  issued  upon 
the  judgment  in  the  justice's  court  was  returned  before  the  expiration  of 
the  sixty  days.  The  reasons  which  may  have  induced  the  sheriff  to  make  such 
a  return,  or  whether  it  was  made  at  the  request  of  the  plaintiff  in  the  ac- 
tion or  not,  are  entirely  immaterial,  and  not  the  subject  of  inquiry  in  such 
an  action.    Ib. 

BOND  :  DISTRICT  COURT  OF  THE  CITY  OF  NEW  YORK,  6 :  INJUNCTION,  14, 
15:  JUSTICES'  COURTS,  14:  STAY  OF  PROCEEDNGS:  SUMMONS,  1. 

USURY. 

1.  The  defence  that  a  contract  is  void  on  account  of  usury,  can  only  be  al- 
leged or  set  up  by  the  party  bound  by  the  original  contract  to  pay  the 
sum  borrowed,  or  his  sureties,  heirs,  devisees,  or  personal  representatives. 
[7  Hill,  391 ;  1  Barb.,  271 ;  4  Id.,  346  ;   5  Sold.,  241 ;  Bayley,  4  ;  distin- 
guishing 1  N.  Y.,  274.]      Ct.  of  Appeals,  1865,  Billington  v.  Wagoner,  33 
N.  Y.,  31. 

2.  The  party  chargeable  with  the  usury  cannot  be  allowed  to  avail  himself 
of  the  statute.    Ib. 

3.  The  defence  of  usury  is  an  unconscionable  one,  and  the  courts  will  not 
usually  open  a  judgment  obtained  by  default  to  establish  it,  or  allow  the 
amendment  of  a  pleading  for  that  purpose.      [6  Hill,  226 ;  1  Paige,  427.] 
N.  Y.  Com.  PL,  1863,  Farish  v.  Corlies,  1  Daly,  274. 

CAUSE  OF  ACTION,  9. 

VARIANCE. 

1.  Where  a  special  partnership  do  not  maintain  a  sign  such  as  the  statute  re- 
quires,  no  action  to  be  abated  or  dismissed  by  reason  of  the  proof  of  plain- 
tiff of  the  partnership  failing  to  meet  the  allegations  of  his  pleading  as  to 
the  names  and  number  of  the  partnership ;  but  the  pleading  may  be  amended 
on  the  trial  to  conform  to  the  proof  in  that  respect  without  cost.    2  Laws  of 
1866, 1424,  ch.  661. 

2.  In  an  indictment  for  an  offence  within  five  hundred  yards  of  the  boundary 
•  of  two  counties,  the  place  of  commission,  as  laid  in  the  indictment,  may 

properly,  by  way  of  local  description,  be  described  as  on  the  boundary,  and 
within  five  hundred  yards  of  the  boundary  line  [2  Rev.  Stat.,  727] ;  and 
there  is  no  variance,  if  the  proof  be  of  an  offence  committed  within  five  huu- 


NEW  YOEK:  1866.  563 


dred  yards  of,  though  not  precisely  on,  the  line.     Supreme  Ct.,  1866,  Peo- 
ple v.  Davis,  45  Barb.,  494. 

COMPLAINT,  6. 

*  '  -  i 

VENDOR  AND  PURCHASER. 

1.  A  stipulation  in  a  deed  of  real  property,  or  in  another  instrument  between 
the  vendor  and  purchaser,  not  merged  in  the  deed,  that  the  vendor  shall 
retain  possession  for  a  time,  and  then  shall  deliver  possession  to  the  pur- 
chaser, does  not  create  the  relation  of  landlord  and  tenant  between  them 
during  such  period.      N.   Y.   Superior  Ct.,  1863,  Mott  v.  Coddington, 
Ante,  290. 

2.  The  premises  are  meanwhile  at  the  risk  of  the  purchaser ;  and  the  vendor 
is  not  liable  to  him,  upon  such  contract,  for  a  loss  by  fire  before  the  de- 
livery of  possession.     16. 

3.  Even  were  it  otherwise,  the  purchaser's  acceptance  of  the  deed,  after  the 
fire,  with  knowledge  of  the  loss,  would  extinguish  any  claim  to  indem- 
nity.    Ib. 

VERDICT. 
JUDGMENT,!:  TRIAL.  , 

VERIFICATION. 

1.  It  is  true  that  a  party  may  be  convicted  of  perjury  in  swearing  to  his  be- 
lief of  that  which  he  knows  to  be  untrue.     But  the  evidence  in  such  a 
case,  and  in  one  where  a  party  swears  directly,  is  quite  different.    In  the 
former,  the  prosecution,  in  addition  to  negativing  the  principal  fact,  would 
be  obliged  to  establish  the  corrupt  motive  by  affirmative  proof.      In  the 
other,  if  the  main  fact  were  disproved  by  sufficient  evidence,  it  would  rest 
upon  the  accused  to  show  that  the  swearing  was  not  corrupt,  but  the  re- 
sult of  a  mistake,  or  the  like.      The  onus  should  rest  on  him,  and  an  affi- 
davit, which  will  invert  the  order  of  proof,  ought  not  to  be  held  sufficient. 
Ct.  of  Appeals,  1865,  Ingram  v.  Robbins,  33  N.  Y.,  409. 

2.  A  complaint  is  "  duly  verified  "  within  section  4  of  the  act  of  1857,  in  re- 
lation to  the  marine  court,  if  made  by  one  of  several  plaintiffs,  united  in 
interest.      It  is  not  necessary  to  state  that  the  person  making  it  is  ac- 
quainted with  the  facts.      N.  Y.  Com.  PL,  1861,  Ballard  v.  Lockwood,  1 
Daly,  158. 

CONFESSION  OF  JUDGMENT,  5-7. 

WAIVER. 

The  voluntary  act  of  the  obligors,  in  giving  a  bond,  under  an  order  of  court 
which  affords  the  party  his  election  to  give  it  or  not,  is  a  waiver  of  any 
objection  to  the  authority  of  the  judge  making  the  order,  to  require  such 
a  bond.    N.  Y.  Superior  Ct.,  1863,  Ford  v.  Townsend,  Ante,  159. 
MASINE  COURT,  1 :  PLEADING,  19,  31. 


564  ABBOTTS'  PRACTICE  DIGEST. 


WARRANT. 

Any  magistrate,  having  criminal  jurisdiction,  who  takes  a  deposition,  affida- 
vit or  complaint,  in  writing,  on  which  he  issues  a  criminal  warrant,  search 
warrant,  or  other  criminal  process,  must  file-and  preserve  the  same,  and  ex- 

•  hibit  the  same,  on  the  demand  of  any  person  affected  by  the  process, 
for  his  perusal.  Copies  allowed  to  be  taken.  1  Laws  of  1866, 150,  eh.  95. 

WILL. 

1.  An  officer  in  the  army  of  the  United  States  in  May,  1864,  after  it  had 
commenced  to  move  on  Richmond,  wrote  and  sent  a  letter  to  hie  sister,  say- 
ing, if  he  was  killed,  or  did  not  return,  he  wanted  her  to  have  his  prop- 
erty.    He  was  killed  in  August,  1864. — Held,  that  this  portion  of  the  let- 
ter was  a  valid  will  by  a  soldier,  and  should  be  admitted  to  probate   as 
such.     Surrogate's  Court,  Otsego  County,  Botsford  v.  Krake,  Ante,  112. 

2.  Whether  a  testamentary  declaration  made  by  a  soldier  in  actual  military 
service,  is  valid  as  a  will,  although  not  made  in  sickness  or  peril  of  im- 
mediate death,  Quere  ?    Ib. 

WITNESS. 

1.  Husband  and  wife  cannot  be  examined  either  for  or  against  each  other, 
except  in  cases  where  they  are  parties  to  the  suit.      [12  Abb.  Pr.,  246 ;  5 
Seld.,  153.]     JV.  Y.  Com.  PL,  1862,  Rogers  v.  Rogers,  1  Daly,  194. 

2.  That  a  bank  cashier  is  in  general  deemed  qualified  to  testify  as  an  expert 
upon  a  question  of  handwriting.     Ct.  of  Appeals,  1864,  Dubois  v.  Baker,  30 
N.  Y.,  354;  affirming  S.  C.,  40  Barb.,  556. 

3.  The  plaintiff,  in  a  suit  in  equity,  brought  to  establish  a  lost  or  destroyed 
will,  against  the  administrators  and  next  of  kin  of  the  testator,  is  not  a 
competent  witness  in  his  own  behalf,  to  prove  conversations  had  between 
himself  and  the  deceased,  at  and  before  the  time  of  making  the  will, 
on  the  subject  of  the  will.     Supreme  Ct.,  1865,  Timon  v.  Claffy,  45  Barb., 
438. 

4.  In  an  action  brought  by  a  judgment  creditor  to  reach,  and  apply  on  his 
judgment,  moneys  and  property  of  the  judgment  debtors,  alleged  to  be  in 
the  hands  of  their  attorney  and  another  person,  and  to  be  by  them  fraudu- 
lently withheld  from  the  judgment  debtors  and  their  creditors,  one  of  the 
judgment  debtors  is  not  disqualified  as  a  witness,  on  the  ground  that  the 
action  is  for  his  immediate  benefit.      The  benefit  to  him,  in  case  of  a  re- 
covery, is  mediate — that  is,  through  the  medium  of  another, — the  receiver, 
and  by  indirection,  in  the  payment  of  his  debts;  not  immediate  by  putting 
into  his  hands  or  power  the  very  proceeds  of  the  recovery.    [2  Kern.,  373 ; 
3  Id.,  292.]     Supreme  Ct.,  1859,  Cowing  v.  Greene,  45  Barb.,  589. 

5.  Pursuant  to  a  stipulation  of  the  parties,  the  testimony  of  M.,  who  was  dead, 
given  on  a  former  trial  of  the  case,  was  read  in  evidence.  Subsequently,  the 
defendant  offered  to  read  a  deposition  of  M.,  in  another  suit,  for  the  purpose 
of  contradicting  his  evidence  as  read,  and  impeaching  him. — Held,  that 
the  deposition  was  properly  excluded.  Had  thq  witness  been  living,  and 


NEW  YORK:  1866.  565 


on  the  stand,  it  would  not  have  been  competent,  by  way  of  impeachment, 
to  show  that  he  made  different  and  contradictory  statements  on  other  oc- 
casions, without  first  calling  his  attention  to  them.  Without  this,  there  is 
no  foundation  laid  for  the  evidence.  It  cannot  change  the  rule  that  the 
•witness  is  dead,  and  the  parties  have  agreed  that  his  evidence  might  be  read 
as  he  gave  it  on  a  former  trial.  Ct.  of  Appeals,  1865,  Hubbard  v.  Briggs, 
31  N.  Y.,  518,  536. 

6.  The  question  to  a  witness,  for  the  purpose  of  impeaching  his  credibility, 
whether  he  had  not  been  expelled  from  an  Odd  Fellows'  lodge ; — Held, 
properly  excluded,  as  an  affirmative  answer  would  not  affect  the  credibil- 
ity of  the  witness.     N.  Y.  Com.  PL,  18GO,  Greaton  v.  Smith,*  1  Daly,  380. 

7.  To  entitle  the  examining  counsel  to  show  a  discrepancy,  for  the  purpose 
of  impeaching  the  credibility  of  the  witness,  it  must  either  appear  that 
the  testimony  related  to  a  point  material  to  the  issue  on  trial,  or  to  a,  fact 
brought  out  on  the  examination  of  the  adverse  counsel.      Ct.  of  Appeals, 
1864,  Carpenter,  v.  Ward,  30  N.  Y.,  243. 

8.  A  party  who  cross-examines  a  witness  as  to  a  collateral  matter,  is  con- 
cluded by  his  answers.      He  cannot  draw  out  collateral  statements  from 
the  witness,  and,  for  the  purpose  of  discrediting  him,  show  that  on  some 
other  occasion  he  stated  differently.      Ct.  of  Appeals,  1864,  Carpenter  v. 
Ward,  30  N.  Y.,  243. 

9.  That  evidence  of  former  declarations  of  a  witness,  inconsistent  with  his 
testimony,  may  be  given  for  the  purpose  of  impeaching  his  credit.    Chap- 
man v.  Brooks,  31  N.  Y.,  75. 

10.  What  questions  may  properly  be  asked  upon  cross-examinations.    Hub- 
bard  v.  Briggs,  31  N.  Y.,  518,  539,  540. 

11.  The  cross-examination  of  a  witness,  as  to  a  conversation  had  by  him, 
must  be  limited  to  that  particular  subject  of  the  conversation  which  was 
brought  out  on  the  direct  examination.     The  whole  conversation  cannot 
be  given  on  the  cross-examination.   •  N.  Y.  Com.  PL,  1860,  Greaton  t>. 
Smith,*  1  Daly,  380. 

12.  Testimony  of  a  party  offered,  not  to  contradict  his  own  previous  testi 
mony,  but  to  obviate  the  effect  of  testimony  of  the  adverse  party  as  to  a 
transaction,  questioned ; — Held,  admissible.     N.  Y.  Com.  PL,  1860,  Smith 
v.  Ferris,  1  Daly,  18. 

13.  Under  the  provisions  of  the  Code  of  Procedure,  which  authorize  the  ex- 
amination of  parties  to  actions  before  the  trial,  the  testimony  of  a  party 
may  be  taken  before  issue  joined.    The  object  of  allowing  a  party  to  be 
examined,  at  the  instance  of  his  adversary,  before  trial,  was  not  merely 
for  convenience,  but  to  enable  a  party  to  obtain  and  secure  evidence  in 
support  of  his  cause  of  action  or  defence.    N.  Y.  Superior  Ct.,  1865,  Mc- 
Vickar  v.  Ketchum,  Ante,  452 ;  affirming  S.  C.,  19  Abb.  Pr.,  24. 

14.  A  party  who  applies,  under  the  provisions  of  section  491  of  the  Code  of 
Procedure,  for  an  order  directing  an  examination  of  an  adverse  party  be- 
fore trial,  must  present  an  affidavit  stating  the  nature  of  the  action,  and  if 
the  application  be  made  by  the  defendant,  then  the  nature  of  his  defence ; 

•Affirmed,  33  N.  F.,245. 


566  ABBOTTS'  PKACTICE   DIGEST. 


and  also  the  name  and  residence  of  the  porson  to  be  examined.  Without 
such  an  affidavit,  a  judge  is  not  required  to  sign  a  summons  or  order  di- 
recting the  party  to  appear.  N.  Y.  Superior  Ct.,  Chambers,  Green  v. 
Herder,  30  How.  Pr.,  210. 

15.  Proceedings  to  enforce  examination  of  witnesses  under  Metropolitan  San- 
itary Act,    1  Laws  of  1866,  129,  §  14,  subd.  2, 138,  §  27. 

16.  Under  the  amendment  of  section  399  of  the  Code,  passed  in  1865,  a  pris- 
oner is  not  a  competent  witness  for  himself,  upon  the  trial  of  the  indict- 
ment.    The  act  does  dues  not  apply  to  criminal  cases  arising  before  crim- 
inal courts.     Supreme  Ct.,  1865,  Williams  v.  People,  45  Barb.,  201. 

18.  After  the  dissolution  of  a  partnership  by  the  death  of  one  of  its  members, 
the  survivor  holds  the  assets,  still,  as  partnership  property,  tuid  by  virtue 
of  his  original  power  as  partner.  Therefore,  he  is  in  no  sense  the  assignee  of 
the  deceased  partner ;  and  the  restriction  of  section  399  of  the  Code  of 
Procedure,  as  to  the  reception  of  evidence  of  transactions  with  a  deceased 
person,  against  the  executors  or  assignees  of  the  deceased,  does  not  extend 
to  an  action  against  him.  Supreme  Ct.,  1865,  Tremper  v.  Conklin,  44 
Barb.,  456. 

18.  Under  section  399  of  the  Code  of  Procedure,  as  amended,  the  restriction 
of  the  right  to  testify  on  the  part  of  the  living  party  to  any  transaction, 
when  the  other  party  to  such  transaction  is  dead,  depends  upon  the  fact 
that  the  action  is  prosecuted  by  "  an  executor,  administrator,  heir-at-law, 
or  next  of  kin  or  assignee  of  such  deceased  person,  and  when  they  have 
acquired  title  to  the  cause  of  action  immediately  from  said  deceased  per- 
son."   It  does  not  apply  to  one  who  is  not  an  executor  of  the  deceased 
person,  who  was  a  party  to  the  transaction,  and  does  not  hold  and  had 
not  acquired  title  to  the  cause  of  action  "  immediately  from  the  said  de- 
ceased person."     Supreme  Ct.,  1865,  Coller  r.  Wenner,  45  Barb.,  297. 

19.  The  proviso  qualifying  section  399  of  the  Code  of  Procedure  as  to  testi- 
mony of  parties,  amended  to  read  as  follows  :   Provided,  however,  that  the 
assignor  of  a  thing  in  action,  or  any  person  who  has  a  legal  or  equitable 
interest,  which  may  be  affected  by  the  event  of  the  action,  shall  not  be  ex- 
amined on  behalf  of  the  assignee  or  party  through  whom  such  interest 
would  be  affected  ;  nor  shall  a  party  to  an  action  beT  examined  on  his  own 
behalf,  or  in  behalf  of  any  other  party,  in  respect  to  any  transaction  or  com- 
munication had  personally  by  said  assignor,  person,  or  said  party  respec- 
tively, with  a  deceased  person,  against  parties  who  are  the  executors,  admin- 
istrators, devisees,  heirs-at-law,  next  of  kin,  or  survivor  of  a  person  or  party  ' 
jointly  interested,  or  assignees  of   such    deceased    person,  where   they 
have  acquired  title  to  the  cause  of   action,  or  the  subject-matter  in- 
volved in  the  action,  from  the  deceased  person  or  party  jointly  inter- 
ested, or  are  sued  as,  or  by  reason,  or  in  consequence   of  their  being 
such    executors,    administrators,    devisees,    heirs-at-law,  next   of    kin, 
surviving  partners  or  assignees;  nor  in   respect   to  any  transaction   or 
communication  had  personally  with  a  person  who,  at  the  time  of  trial,  is  an 
insane  person  or  a  lunatic,  where  the  action  or  proceeding  is  prosecuted  or 
defended  on  the  behalf  of  such  insane  person  or  lunatic,  nor  in  any  such  ac- 
tion or  proceeding  as  against  such  parties,  shall  any  party  or  person  be  ad- 
mitted to  testify  in  regard  to  such  matter  in  behalf  of  any  party  whose  interest 
in  the  action  or  procedings  (either  by  voluntary  act,  or  by  legal  proceedings, 
or  by  operation  of  law),  directly  or  indirectly  grows  out  of,  or  is  founded 
upon  a  transaction  between  the  deceased  and  the  party  or  person  called  89 
a  witness,  or  grows  out  of,  or  13  founded  upon  any  prior  or  present  rights  or 
interest  of  the  partv  or  person  called  as  a  witness  in  or  to  the  estate  or  prop- 
erty that  is  the  subject  of,  or  involved  in  the  controversy ;  or  where  the 


NEW   YORK:    1866.  567 


interest  of  the  party  for  whom  he  is  called  substantially  represents  an  inter- 
est that  the  person' or  party  called  as  a  witness  has  or  has  had  growing  out 
of  the  transaction  of  the  deceased,  about  which  be  is  called  to  testify.  But 
where  such  executors,  administrators,  devisees,  heirs-at-law,  next  of  kin 
survivors  or  assignees  shall  be  examined  on  their  own  behalf  in  regard  tc 
any  conversation  or  transaction  had  between  the  deceased  person  and  said 
assignor,  or  said  party  or  person  respectively,  then  the  said  assignor,  party 
or  person,  may  be  examined  in  regard  to  such  conversation  or  transaction 
but  not  in  regard  to  any  new  matter ;  but  if  the  testimony  of  a  party  to  an 
action  or  proceeding  shall  have  been,  or  shall  be  taken,  and  he  shall  after- 
wards die,  and  after  his  death  the  testimony  so  taken  shall  be  used  upon 
any  trial,  hearing  or  proceeding  in  behalf  of  his  executors,  administrators 
devisees,  heirs-at-law,  next  of  kin,  survivors  or  assignees,  the  other  party 
the  assignor  or  person  in  interest  as  aforesaid,  or  the  one  through  and  from 
whom  the  said  rights  or  interests  have  been  derived,  shall  be  a  competen* 
witness  as  to  any  and  all  matters  to  which  the  testimony  of  the  deceased  so 
taken  relates.  And  nothing  contained  in  section  8  of  this  act  shall  be  held 
or  construed  to  affect  the  operation  of  this  section  ;  and  nothing  herein  con- 
tained shall  be  held  or  construed  to  give  the  right  to  a  party  in  a  criminal  ' 
action,  to  testify  upon  the  trial  thereof.  2  Laws  of  1866,  1845,  ck.  824, 
§17. 

20.  The  provisions  of  section  399  of  the  Code  of  Procedure,— enabling  a 
party  to  be  examined  as  a  witness  in  his  own  behalf, — do   not  apply  to 
defendants  in  criminal  prosecutions.    They  apply  only  in  civil  actions  and 
proceedings.     Ct.  of  Appeals,  1865,  Williams  v.  People,  33  N.  Y.,  668. 

21.  A  party  who  attends  and  is  sworn  on  his  own  behalf,  cannot  in  any  case 
be  allowed  to  recover  fees  for  such  attendance.     Witnesses  fees  are  allow- 
able only  as  disbursements.  [Reviewing  conflicting  authorities.]    Supreme 
Ct.,  VI.  Dist.,  1865,  Steere  v.  Miller,  28  How.  Pr.,  266  ;  affirmed  in  Ct.  of 
Appeals,  1865,  30  Id.,  7. 

22.  In  order  to  bring  a  party  into  contempt  for  not  appearing  to  be  exam- 
ined before  trial  (under  section  391  of  the  Code  of  Procedure),  a  summons 
must  be  personally  served  upon  the  party  to  be  examined  ;  and  a  notice  of 
the  intended  examination  must  be  served  upon  the  attorney  of  such  party, 
and  of  any  other  party  adverse  to  the  one  applying  for  the  examination. 
Supreme  Ct.,  1864,  Van  Rensselaer  v.  Tubbs,  31  How.  Pr.,  293. 

23.  Witnesses  allowed  for  attending  before  a  justice  of  the  peace  in  a  justice's 
court,  or  before  a  commissioner  appointed  by  a  justice  of  the  peace,  or  before 
a  justice  of  the  peace  taking  deposition  to  be  used  in  other  States,— twenty- 
five  cents  for  each  day's  attendance.    Laws  of  1866, 1486,  ch.  692,  §  9. 

EVIDENCE,  22-28. 

WRIT. 

CERTIORARI,  7 :  ERROR  :  EXECUTION  :  MANDAMUS  :  PROHIBITION. 


THE    END. 


Ill  II  II 
A    001  166709    4 


